INA Operations Pty Limited ATF INA Operations Trust No.1

INA Operations Pty Limited ATF INA Operations Trust No.1

WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal by worker and cross appeal by respondent employer; both appeals made on the grounds of the assessment being made on the basis of incorrect criteria and demonstrable error; a supplementary statement of the worker was not admitted as fresh evidence; worker submitted error in the psychiatric impairment rating scale categories of self-care and personal hygiene, self-social functioning; application of section 323 deduction; Appeal Panel found no error in assessment of self-care and personal hygiene and self-social functioning; Appeal Panel found error in deduction pursuant to section 323 as deduction based in part on vulnerability; Appeal Panel made a one-tenth deduction for pre-existing psychiatric conditions; in appeal by employer Appeal Panel found no error in the assessment of travel or the assessment of concentration, persistence and pace; assessment of total whole person impairment by the Appeal Panel was the same as made by the Medical Assessor and in those circumstances the review has not lead to a different result and should not be interfered with; Held - Medical Assessment Certificate confirmed.

1. On 28 October 2025 Richard Scott (Mr Scott) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yu Tang Shen, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 2 October 2025. This appeal was registered as M1-W5568/25.
2. On 30 October 2025 INA Operations Pty Limited ATF INA Operations Trust No.1 (INA) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yu Tang Shen, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 2 October 2025. This appeal was registered as

M2-W5568/25. 3. Both appellants rely on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act): * the assessment was made on the basis of incorrect criteria, and * the MAC contains a demonstrable error. 4. The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out in each appeal. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeals are made. 5. The delegate referred the appeals to the Medical Appeal Panel (Appeal Panel) for determination with the Appeal Panel to deal with both of the appeals concurrently

(M1-W5568/25 and M2-W5568/25). 6. Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules. 7. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed

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

1. Mr Scott lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) dated 19 May 2025 in which he claimed an amount of $39,420.00 in respect of 15% whole person impairment (WPI) for a psychiatric disorder as a result of the injury deemed to have occurred on 11 January 2024.
2. As noted above, the Commission appointed Dr Yu Tang Shen, Medical Assessor, to assess WPI resulting from injury deemed to have occurred on 11 January 2024.
3. The Medical Assessor examined Mr Scott on 29 September 2025 and assessed 7% WPI in respect of the psychiatric disorder. The Medical Assessor then deducted 1/10th for pre-existing condition which resulted in an assessment of 6% WPI to which the Medical Assessor added 1% WPI for effects of treatment. The total WPI, as a result of the injury deemed to have occurred on 11 January 2024 was 7%.

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 Mr Scott to undergo a further medical examination because there was sufficient information on which to make a determination.

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. Procedural Direction PIC 7 at paragraph 18 provides:

"18. If a party seeks to rely on additional relevant information as a ground of appeal (s 327(3)(b) of the 1998 Act) or give fresh evidence, additional evidence or substituted evidence on appeal (s 328 of the 1998 Act) they must provide:

(a) a schedule of the evidence, including the author and date of the evidence;

(b) a clear copy of the evidence;

(c) submissions as to why the evidence is additional relevant information/fresh evidence, and

(d) submissions as to why the evidence was not available to and could not reasonably have been obtained by the party before the medical assessment appealed against".

1. Mr Scott has sought leave to rely on the availability of additional relevant information in

M2-W5568/25. 2. Mr Scott seeks to admit the following evidence:

(a) statement of Mr Scott dated 18 November 2025.

1. Mr Scott's submits that a Supplementary Statement dated 18 November 2025 was obtained and prepared in response to the allegations made in the submissions by INA in respect of the Psychiatric Impairment Rating Scale (PIRS) category of 'Travel'. Mr Scott submits that the statement ought to be admitted and considered by the Appeal Panel.
2. Mr Scott submits the evidence is evidence of a medical kind because the matters recorded therein pertain to matters that are relevant to the PIRS assessment and the medical dispute itself. Mr Scott relies upon the statement to establish the Medical's Assessor's findings with respect to the PIRS category of 'Travel' were not made based on incorrect criteria or demonstrable error and submits the evidence ought to be admitted and considered on this basis.
3. Mr Scott submits that his supplementary statement was not available to Mr Scott prior to the medical assessment and has been prepared in response to INA's submissions, which rely on the transactions set out in Mr Scott's bank statements.
4. Mr Scott submits his supplementary statement has prima facie probative value given that it is particular to the PIRS category of 'Travel' and it addresses the matters raised by the INA and provides additional context and clarification regarding the transactions in question. Mr Scott argues that it is intended to assist in the fair and accurate consideration of the issues at hand. Mr Scott submits that there is no mandatory rule which prevents evidence such as a supplementary statement from being admitted.
5. Mr Scott argues that to prevent him from being able to rely upon this statement would mean the determination made is inconsistent with:

(a) the system objectives identified at s 3 of the 1998 Act, particularly the system would not be fair (sub-s (d)) and such objective would not be delivered efficiently and effectively (sub-s (f));

(b) the guiding principle of facilitating just, quick and cost effective resolution of the real issues in the proceedings would not be given effect (s 42 of the Personal Injury Commission Act 2020 (PIC Act);

(c) proceedings would not be conducted with as little formality and technicality as the proper consideration of the matter permitted, noting the true issues in these proceedings would be ventilated and adjudicated upon if the statement if admitted (s 43 of the PIC Act);

(d) the Commission may inform itself on any matter in the manner considered appropriate (s 43(2) of the PIC Act), and

(e) the Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (s 43(3) of the PIC Act).

1. 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.
2. 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:

"A dispute by the worker as to the history set out in the certificate, or the observations made by the AMS, can readily be raised; and it could be raised honestly or dishonestly, on strong or flimsy grounds. Having regard to the matters I have set out, 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. This supplementary statement clearly was not available before the examination by the Medical Assessor. However, no submissions were made by Mr Scott as to why it could not have been reasonably obtained before the examination by the Medical Assessor. Mr Scott merely states that the statement addresses the matters raised by the INA and provides additional context and clarification regarding the bank transactions in question.
2. The Appeal Panel considers that this evidence from the appellant could have been obtained before the ARD was filed or before the examination by the Medical Assessor. Mr Scott filed a statement dated 9 May 2025, that is, after his travel in February, March and April 2025. Mr Scott does not explain why he did not provide details of this travel in the part of that statement under the heading "Ongoing impairments" particularly at paragraph 32 where he addresses his ability to travel.
3. The Appeal Panel determines for the reasons given above that the following evidence should not be received on the appeal:

(a) statement of Mr Scott dated 18 November 2025.

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.

1. Mr Scott's submissions in M1-W5568/25 include the following:

(a) Ground 1: Self-Care and Personal Hygiene - the Medical Assessor erred in finding that Mr Scott was a Class 2 in Self-Care and Personal Hygiene. Although the Medical Assessor is required to form his own view, the premise upon which the Medical Assessor's conclusion is predicated is unsubstantiated. The history and facts that the Medical Assessor has recorded is more consistent with the Class 3 descriptors as opposed to the Class 2 descriptors. This is because the evidence obtained does not suggest Mr Scott was capable of independent living without regular support, nor does it suggest he did not need prompting with self-care.

(b) The evidence before the Medical Assessor is that following the subject injury Mr Scott's Self-Care and Personal Hygiene has been moderately impaired, he reports needing prompting to shower, he does not always prepare his own meals and relies on takeaway food when prior to the injury he would cook regularly.

(c) The Medical Assessor ought to have taken all of the above factors into consideration when assessing the best fit for this class which is Class 3 and not Class 2. The findings above are consistent with a Class 3 rating.

(d) The Medical Assessor failed to consider the principles of paragraph 11.12 and has based his assessment on the exhaustive examples recorded at Table 11.1, resulting in a demonstrable error. The history and facts that the Medical Assessor has listed is more consistent with a Class 3 descriptor for Self-Care and Personal Hygiene. The Medical Assessor has made a demonstrable error and applied incorrect criteria by assessing self-care and Personal Hygiene at Class 2 rather than Class 3.

(e) Ground 2 - Social Functioning - the Medical Assessor has failed to consider the principles of paragraph 11.12 and has based his assessment on the exhaustive examples recorded at Table 11.2, resulting in a demonstrable error. The evidence before the Medical Assessor is that as a result of the injury, Mr Scott has lost contact with his friends, his relationship with his partner remains however he has considered separation more than once. The Medical Assessor ought to have considered Mr Scott's age, and most importantly, the significant change of his lifestyle from one where he was working, socialising and able to maintain relationships to one where he has effectively isolated himself. The Medical Assessor has provided his assessment based on incorrect criteria with respect to the Social Functioning Scale and this is a demonstrable error.

(f) The history and facts evidence that Mr Scott almost separated from his partner twice as a result of the subject injury and his previously established close friendships are severely strained.

(g) When considering these findings and Mr Scott's pre-injury social functioning, age sex and cultural norms that the best fit category for Social Functioning is more consistent with a Class 3 rating. The best fit on history taken and available evidence is Class 3 and the Medical Assessor has made a demonstrable error and applied incorrect criteria by assessing Social Functioning as Class 2.

(h) Ground 3 - The Medical Assessor has incorrectly applied a 1/10th deduction on the basis of a pre-existing condition. The Medical Assessor has not articulated how a previous condition contributed to the current impairment and how it made a difference in terms of the degree of impairment resulting from the work injury. Accordingly, a deduction should not be made.

(i) The Medical Assessor fell into error when making a deduction pursuant to s 323 of the 1998 Act on the basis that he had a pre-existing vulnerability from his pre-existing psychiatric injuries. This is not the correct or appropriate test in the application of a deduction for impairment, and it is well recognised in Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416 and De Angelis v Solaris Paper Pty Ltd [2023] NSWPICMP 124 that a deduction should not be made under s 323 for a vulnerability.

(j) Whilst the clinical evidence refers to the existence of a pre-existing psychological condition prior to the subject injury, those symptoms were effectively treated and managed through the use of medication and only some consultations with a counsellor (page 2 of ARD). The Medical Assessor has not accepted that Mr Scott's pre-existing injury had recovered at the time of the subject workplace injury, in the lead up to which he was capable of working without issue and he was not impaired by the effects of any pre-existing condition. The Medical Assessor was of the view Mr Scott's impairment would "not be as great" (page 7 of the MAC) had he not suffered an earlier psychiatric condition prior to the subject injury. But the Medical Assessor has failed to provide his reasoning for the proportion of the permanent impairment that is due to the pre-existing injury.

(k) In applying a deduction, the Medical Assessor has failed to satisfy the threshold of s 323, in that, a deduction is not warranted simply due to the presence of a pre-existing injury, but the actual proportion of the permanent impairment that is due to the pre-existing injury. The pre-existing condition does not contribute to his overall level of permanent impairment. There is no evidence to suggest Mr Scott was impaired at the time of the subject injury as a result of his pre-existing condition. a deduction pursuant to s 323 is not warranted in the circumstances.

(l) Any prior psychological condition was well under control and managed up until the subject injury (page 6 of ARD). It is well documented Mr Scott was asymptomatic prior to and in the lead up to the subject workplace injury. Mr Scott maintains that his pre-existing condition does not contribute to his overall level of permanent impairment arising from the subject injury.

(m) The Medical Assessor erred in applying a 1/10th deduction for the reasons provided above. Also, a deduction under s 323 cannot be made based on vulnerability alone.

(n) The MAC should be revoked.

1. INA submissions in M1-W5568/25 include the following:

(a) Ground 1 - Self-Care and Personal Hygiene - the Medical Assessor has taken a thorough history. The Medical Assessor recorded Mr Scott's presentation and his findings on examination, stating at page 4 of the MAC: "He presented as a casually dressed man in a black singlet. He had an average build and appeared to be his stated age."

(b) The assessment of a mild impairment for Self-Care and Personal Hygiene is also consistent with Mr Scott's own evidence, which is recorded by the Medical Assessor at page 6 of the MAC, "self-care was mildly impaired as he was able to cook and do household chores".

(c) The Medical Assessor's assessment of Class 2 impairment for Self-Care and Personal Hygiene is consistent with the history taken and the evidence that was available to him. In the history obtained by the Medical Assessor, he was able to obtain from Mr Scott that he is able to complete a variety of household chores including some cooking once or twice per week, cleaning up after himself, attending to some laundry, and grocery shopping whenever needed. He lives with a partner and so she also contributes to the household by attending to cleaning and laundry.

(d) The Medical Assessor has also taken a thorough history and given appropriate consideration to Mr Scott's showering and hygiene routine. The Medical Assessor records that while Mr Scott is lax with his showering, he does shower a couple of times per week when reminded by his partner.

(e) The Medical Assessor records that Mr Scott does not miss meals, cooks less often than he used, relies on takeaway food sometimes, and has improved from his initially reduced appetite as evidence by weight gain (MAC page 2).

(f) While Mr Scott may require prompting to shower, all other indicators of self-care and personal hygiene fit within the Class 2 descriptors, including the need for some takeaway food.

(g) The division of labour between he and his partner is somewhat typical and indicates a level of functioning that is consistent with his age and sex, as required by Paragraph 11.12 of the Guidelines.

(h) On the totality of the evidence, the Medical Assessor has reached a conclusion that was not only open to him, but that was the only appropriate assessment in the circumstances. Mr Scott has not submitted any evidence, other than his own lay evidence, which would support an assessment of moderate impairment. Mr Scott's own independent medical examiner (IME) did not assessment a moderate impairment for Self-Care and Personal Hygiene (MAC page 6; ARD page 73). there is no demonstratable error, and the MAC is not based on incorrect criteria.

(i) Ground 2 - Social Functioning - the Medical Assessor has correctly assessed Class 2 in Social Functioning.

(j) In respect of social functioning, the Medical Assessor recorded a history at pages 3 and 4 of the MAC, the Medical Assessor noted that Dr Anand had also assessed a mild impairment in Social Functioning at pages 6-7 of the MAC, where he recorded that: "Social functioning was mildly impaired as his relationship with his fiancé has improved and are home bodies and has lots of laughs together. He remains in contact with his older son."

(k) The finding of a mild impairment is consistent the history that Mr Scott gave on the day of the assessment, with the Medical Assessor recording that Mr Scott had not separated from his partner, that he continues to see his older son but less often, and that he no longer sees his two friends (MAC pages 3-4).

(l) The assessment of Class 2 for Social Functioning by the Medical Assessor acknowledges Mr Scott's repeated history that he has not ever separated from his partner, but their relationship is strained, that he continues to see his son but less often than before, and that he no longer sees his friends.

(m) The finding of a mild impairment, in part due to Mr Scott's relationship with his partner and his son remaining, is not relying on the exhaustive examples for each category but is in fact weighing up the evidence and the purpose of the PIRS assessment and concluding on an appropriate assessment as he is required to do.

(n) Mr Scott's submission that the Medical Assessor failed to consider the activities that are usual for the person's age, sex and cultural norms per paragraph 11.12 of the Guidelines falls short of overcoming the presumption in Bojko v ICM Property Services Pty Ltd [2009] NSWCA 175 (Bojko), in circumstances where there is no evidence to suggest that the worker's pre-injury Social Functioning was standard or typical. The evidence that was before the Medical Assessor was that Mr Scott was a "homebody" per Dr Anand's assessment (Reply page 96), and that "he had never had many friends" per the history given and recorded at page 3 of the MAC.

(o) Mr Scott has not provided any evidence in support of the submission that his cessation of employment is relevant to the assessment of Social Functioning. There is not, for example, any evidence that Mr Scott had friends employed by INA with whom he has now lost contact.

(p) The evidence available to the Medical Assessor was not that Mr Scott has "effectively isolated himself". INA has given exhaustive examples at pages 4-8 of the Appeal submitted under matter number M2-W5568/25 of Mr Scott travelling away from his home and visiting caravan parks, and hotels in various locations across NSW and Victoria. INA submits that other than Mr Scott's given history of not seeing his two friends anymore, there is no evidence to support an assertion that he now isolates himself from others.

(q) On the totality of the evidence, the Medical Assessor has reached a conclusion that was open to him, namely that Mr Scott has a mild impairment in Social Functioning. The Medical Assessor has carefully considered the history before arriving at Class 2. Accordingly, there is no demonstrable error, and the MAC is not based on incorrect criteria.

(r) Ground 3 - deductions - the Medical Assessor has not fallen into error on the basis that the Medical Assessor did not apply a 1/10th deduction due to the pre-existing vulnerability to psychiatric injury. INA submits that the Medical Assessor applied a 1/10th deduction owing to his opinion that the prior psychiatric injury had recurred as a consequence of the subject injury and was therefore contributing to his current impairment.

(s) The MAC is to be read as a whole to see if the result reached has been adequately explained. When the MAC is read as a whole, it is apparent that the Medical Assessor undertook an appropriate examination of Mr Scott and review of the evidence available to him and came to the conclusion that: "if he had not suffered his earlier psychiatric disorder, his current impairment would not be as great'" (MAC page 7).

(t) INA acknowledges the legal tests set out in Mr Scott's submissions, which provide authority for the principal that a pre-existing vulnerability to injury does not warrant an automatic deduction in accordance with s 323 of the 1998 Act. This is not a case in which the Medical Assessor has applied a deduction simply because Mr Scott had a pre-existing psychiatric injury and was therefore vulnerable to injury. The relevant authority in this case is Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 at [43] (Vitaz), which stated: "That if a pre-existing condition is a contributing factor causing permanent impairment, a deduction is required even though the pre-existing condition had been asymptomatic prior to the injury".

(u) The evidence that was available to the Medical Assessor was that Mr Scott had a significant pre-existing psychiatric injury, with symptoms that had recurred multiple times throughout his life, regardless of whether he was symptomatic at the time of his employment with the insured or not. Various clinical notes between 14 June 2007 and 28 May 2019 show the entries regarding the Mr Scott's pre-existing psychiatric injury and the effect of the pre-existing injury on his level of functioning.

(v) Based on the above evidence and the Mr Scott's self-reporting that he had a pre-existing psychiatric condition, the Medical Assessor's conclusion that "if he had not suffered his earlier psychiatric disorder, his current impartment would not be as great" (MAC page 7) was well founded and an appropriate conclusion to draw.

(w) At a minimum, a 1/10th deduction ought to have been made for the proportion of impairment that is due to the Mr Scott's preexisting condition.

(x) The MAC should be revoked with a fresh MAC issued reflecting the appropriate overall impairment and/or alternatively, Mr Scott could be referred for a re-examination by a Medical Assessor of the Appeal Panel, to obtain a correct assessment of his impairment.

1. INA's submissions in M2-W5568/25 include the following:

(a) Ground 1 - Travel - the Medical Assessor erred in assessing a Class 2 impairment under the PIRS category of Travel, which amounted to an application of incorrect criteria and/or a demonstrable error. In assessing a Class 2 impairment under Travel, the Medical Assessor acknowledged Mr Scott can drive, has been driving to the shops, and has been driving by himself.

(b) The Medical Assessor acknowledged at page 7 of the MAC that his assessment differed to that of Dr Anand with respect to travel but provided no reasons for why he disagreed with the assessment of Class 1 for travel by Dr Anand (Reply page 95).

(c) The Medical Assessor had before him Mr Scott's bank statements from December 2023 to July 2025 (Application to Admit Late Documents (ALAD) 21 August 2025). The Medical Assessor made no comment as to whether he reviewed the same or considered the documents in his MAC, although he did state that documents "as listed in the referral by the Commission" had been provided to him (MAC page 1).

(d) The transactions of Mr Scott show that in 2025 he has travelled from his home in Wagga Wagga to Pambula, Merimbula, Cooma, Yass, Jamieson, Bright, and Sydney. INA submits that the towns and cities of Pambula, Merimbula, Cooma, Yass, Jamieson (Victoria), Bright (Victoria) and Sydney cannot be considered to be local to Mr Scott's usual residence of Wagga Wagga, NSW. While traveling, Mr Scott would not have had access to any familiar areas like local shops or known environments.

(e) The assessment by the Medical Assessor of a mild impairment for travel is entirely inconsistent with the evidence that was available to the Medical Assessor that Mr Scott had been travelling away from his home. The Medical Assessor made an unfounded and unexplained assumption that Mr Scott was only travelling locally, when it appears on the face of the MAC that the Medical Assessor did not ask the Mr Scott at all as to the breadth of his travel.

(f) The Medical Assessor ought to have questioned Mr Scott further regarding any support and accompaniment of a support person on Mr Scott's travels to Pambula, Merimbula, Cooma, Yass, Jamieson (Victoria), Bright (Victoria) and Sydney. The Medical Assessor failed to do so and therefore did not take a complete history from Mr Scott that addressed his need for support while travelling.

(g) Due the absence of the Medical Assessor questioning Mr Scott as to the specific support and accompaniment offered to him by any support person while travelling, the Medical Assessor has failed to disclose his path of reasoning to assess a Class 2 impairment and has therefore fallen into demonstrable error.

(h) The Medical Assessor failed to engage with the Guidelines, and in particular he did not consider (either adequately or at all) Mr Scott's circumstances and compare those circumstances to the activities that are usual for Mr Scott's sex, age and culture.

(i) Taking these matters into account, INA submits the reasonable inference which can be drawn from the available material is that Mr Scott's level of impairment more closely aligns with a Class 1 impairment, as assessed by Dr Anand (Reply page 95).

(j) Ground 2 - Concentration, Persistence and Pace - the Medical Assessor erred in assessing a Class 2 impairment under the PIRS category of Concentration, Persistence and Pace, which amounted to an application of incorrect criteria and/or a demonstrable error.

(k) The Guidelines make it clear that the examples are to be used as a guide only and cannot be used in place of undertaking a complete clinical assessment. The Medical Assessor must examine Mr Scott and make an objective assessment of his concentration, persistence and pace as actually demonstrated to him for the duration of the examination.

(l) At page 4 of the MAC, the Medical Assessor recorded the following findings on mental state examination, mistakenly labelled as "findings on physical examination":

"He engaged cordially in the assessment and provided relevant answers to questions asked, spontaneously supplying detail... He appeared mostly euthymic, and displayed some emotional reactivity congruent with the content of the conversation during the interview. He spoke articulately and in a logical sequence most of the time, without much prompting, with intact prosody... He was alert. He was able to provide a detailed account of his injuries and function. He did not appear to have difficulties sustaining his concentration in the assessment."

(m) The Medical Assessor fell into demonstrable error and/or applied incorrect criteria as he accepted Mr Scott's self-reported history that his concentration "has gone" and does not appear to have undertaken an objective assessment.

(n) The Medical Assessor ought to have undertaken an objective clinical assessment of Mr Scott in order to determine his Concentration, Persistence and Pace.

(o) The Medical Assessor's findings on mental state examination show that Mr Scott demonstrated normal pace ("provided relevant answers to questions asked, spontaneously supplying detail"). The Medical Assessor did not report that Mr Scott had any difficulties in concentration throughout the examination. The Medical Assessor also did not report that Mr Scott had any issues in persisting with the examination throughout the length of the examination. To the contrary, the Medical Assessor found that Mr Scott did not appear to have difficulties sustaining his concentration and that he spoke articulately and in a logical sequence (MAC page 4).

(p) Further, the Medical Assessor accepted that Mr Scott continued to play games that required concentration, and that he had completed two re-training courses since his injury (MAC page 10).

(q) The Medical Assessor accepted Mr Scott's history that his concentration was gone, but at no point in the MAC did the Medical Assessor record that Mr Scott had struggled to concentrate on the examination at hand. Mr Scott's self-reported history is at odds with the Medical Assessor's findings on examination.

(r) These objective factors of Mr Scott's impairment, in contrast with his self-reported functioning, more closely align with a Class 1 impairment as assessed by Dr Anand, instead of the Class 2 assessed by the Medical Assessor (Reply page 96). The Medical Assessor's clinical observations should be given significant weight over Mr Scott's self-reported functioning under this category given his qualifications and objective standing in these proceedings.

(s) The Medical Assessor fell into error by failing to engage with the Guidelines criteria for assessing impairment under this level, and by failing to consider (adequately or at all) Mr Scott's objective presentation when assessing this category.

(t) A review of the MAC as a whole demonstrates that the result reached has not been adequately explained by the Medical Assessor. The class ratings arrived at reflect over-reliance on Mr Scott's subjective history and a failure to properly interview him in circumstances where the Medical Assessor was required to do so in order to properly assess Mr Scott as he presented on the day of the examination.

(u) The class ratings arrived at by the Medical Assessor were glaringly improbable, and it is evident from his discussions in the MAC that he overlooked significant factual matters and evidence (or otherwise did not adequately consider these matters and evidence). The reasoning process made out by the Medical Assessor is unsupportable in the face of the evidence. Therefore, the grounds of appeal raised represent more than mere differences of opinion on the categorisation on the degree of impairment per Ferguson v State of NSW [2017] NSWSC 887 [23].

(v) The MAC should be revoked and a fresh MAC issued reflecting the appropriate overall impairment; and alternatively, Mr Scott could be referred for a re-examination by a Medical Assessor of the Medical Appeal Panel, to obtain a correct assessment of his impairment.

1. Mr Scott's submissions in M2-W5568/25 include the following:

(a) Ground 1: the Medical Assessor did not fall into demonstrable error and/or apply incorrect criteria by assessing Class 2 for the PIRS category of Travel.

(b) The Guidelines concern an injured worker's ability to travel "without supervision" or "without a support person". Supervision or support is a component relevant for consideration. The history taken by the Medical Assessor does not set out an ability to travel to new environments without a support person or without supervision. In doing so, the Medical Assessor has applied the correct criteria of Class 2.

(c) Mr Scott records in his Statement dated 9 May 2025 that since the accident he hardly drives, indicating that he is able to "drive when necessary in [his] local area" (page 5 of the ARD). The assessment of Class 2 for travel by the Medical Assessor acknowledges Mr Scott's repeated history that he can travel without a support person but only in familiar areas.

(d) The bank statements are not conclusive that he travelled during the periods referenced by INA, per West v Australian Catholic University Ltd [2025] NSWPIC 381. The Appeal Panel will not be satisfied that the entries in the bank statements identified by INA are "new environments" to Mr Scott or that they were travelled to "without supervision" and "without a support person". INA's submissions with respect to travel should accordingly be disregarded.

(e) The assertion that the towns and cities visited by Mr Scott are not local to his usual residence is irrelevant to the assessment of impairment. The determination of impairment is based on the worker's ability to function and adapt to various environments, not solely on the geographical proximity of the locations visited.

(f) INA has not provided any substantive evidence to demonstrate that Mr Scott's travel to these locations negates or diminishes the impact of his impairment. The mere fact of travel does not, in itself, indicate an absence of impairment or an ability to function without limitation.

(g) The Medical Assessor 's assessment is based on their professional expertise and the evidence presented during the assessment process. There is no indication that the Medical Assessor failed to consider relevant information or that the conclusions were not based on the evidence available.

(h) The Medical Assessor had before him the ALAD 4 August 2025. At page 136 of the ALAD 4 August 2025, it is indicated that Mr Scott is "going to go around with his wife in their caravan".

(i) Mr Scott resides in a caravan. This fact significantly impacts the assessment of travel. The nature of living in a caravan inherently involves mobility and travel, which does not negate Mr Scott's impairment but rather reflects the practicalities of his living situation.

(j) The Medical Assessor's assessment reflects a balanced consideration of Mr Scott's overall condition and circumstances. The resulting impairment is beyond the scope of a minor impairment and is aligned to that of a mild impairment. The findings for the category of travel accord with the criteria for a mild impairment.

(k) The Medical Assessor did not fall into demonstrable error and/or apply incorrect criteria by assessing Class 2 for the PIRS category of Travel. A Class 2 finding accords with the Medical Assessor's own description and the evidence before him.

(l) Ground 2 - Concentration, Persistence and Pace - the Medical Assessor did not fall into demonstrable error and/or apply incorrect criteria by assessing Class 2 for the PIRS Category of Concentration, Persistence and Pace.

(m) Mr Scott submits that his ability to recall details in a repetitive and familiar format under assessment conditions is not reflective of his cognitive endurance in daily life or his typical cognitive capacity. INA's assumption that it is overlooks the temporary focus achievable within the controlled environment of a structured interview.

(n) Mr Scott participated in numerous interviews, medical consultations, and independent medical examinations as required for his workers' compensation claim, each necessitating him to repetitively recount the same history. As recognised in Bennett v State of New South Wales (NSW Police Force) [2023] NSWPICMP 164 at [61], such recounting during the assessments is considered an "overlearned activity... [which] ...can be performed automatically, with little effort, concentration or attention".

(o) Reliance on isolated observations during the structured assessment fails to capture Mr Scott's actual daily cognitive limitations. The interview provides clear focus and supportive prompts, which are absent in daily situations where sustained cognitive engagement, flexibility, and adaptability are required without external assistance. Furthermore, the assessment process is inherently an "artificial test" as observed in Hardy Mining Pty Ltd v Tamsett [2023] NSWPICMP 165 at [38]: "The interview permits a Medical Assessor to form his or her own view as to a worker's ability to concentrate, although it is a somewhat artificial test because the worker is aware that the interview is an important step toward compensation".

(p) Class 2 of the PIRS rating scale suggests that an individual can engage in a standard retraining course or complete an intellectually demanding task for up to thirty minutes. The history recorded by the Medical Assessor is that he would be "talking to his partner and then forgets what he says. He said he has continued to play Euchre, until he loses, possibly 1-3 games, which can last up to 15 minutes each game". Pre-injury ability he was able to play on the computer for up to hours at a time. This is uncontested and in keeping with the evidence that was before the Medical Assessor. This impairment clearly places him below the 30-minute threshold, meaning Mr Scott ought to have been assessed pursuant to the Clas 2 descriptor.

(q) Class 2 of the PIRS rating scale also suggests that an individual can engage in a standard retraining course. The history taken by the Medical Assessor indicates that Mr Scott has done "a bit of re-training, as he was able to obtain his forklift licence eight months ago and he has also obtained his RSA to serve alcohol around a similar time". Mr Scott's evidence is that the re-training was "difficult, as there were too many people, but he was able to complete the training". The evidence before the Medical Assessor is that Mr Scott was able to undertake a basic retraining course with difficulty. This is uncontested and in keeping with the evidence that was before the Medical Assessor.

(r) The Medical Assessor did not fail to engage with the Guidelines and criteria for assessing impairment under the PIRS Category of Concentration, Persistence and Pace. It would be erroneous for the Medical Assessor to assume that there is no deficit or minor deficit attributable in circumstances whereby the evidence available to the Medical Assessor suggests Mr Scott is mildly impaired.

(s) The best fit on the history taken and available evidence is a mild impairment, and the Medical Assessor did not fall into demonstrable error and/or apply incorrect criteria by assessing Class 2 for the PIRS Category of Concentration, Persistence and Pace. Based on the reasons recorded by the Medical Assessor and the evidence before him, Mr Scott's impairment is far more pronounced when juxtaposed with his pre-injury level of functioning and accords with an assessment at Class 2.

(t) The MAC dated 2 October 2025 should be revoked and a fresh MAC issued in its place reflecting the appropriate overall 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.

1. Mr Scott submits that the history and facts the Medical Assessor recorded are more consistent with the Class 3 descriptors as opposed to the Class 2 descriptors. Mr Scott submits that this is because the evidence obtained does not suggest he was capable of independent living without regular support nor does it suggest he did not need prompting with self-care.
2. The examples under Table 11.1 for Self-Care and Personal Hygiene in the Guidelines are:

"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 appellant as Class 2 for Self-Care and Personal Hygiene. In the PIRS Rating Form, the Medical Assessor wrote:

Since the subject injury, he said he has been showering every 2-3 days when reminded by his partner. He said he has been cooking once or twice a week, otherwise he will have takeaway food. He said he has been cleaning up after himself in the caravan, and his partner also does cleaning, and he does some of the laundry, but his partner does most of it. He said he has been shopping whenever they need something.

As he has been able to self-care relatively independently, albeit with a degree of self-neglect, he has mild impairment."

1. Under "Present symptoms", the Medical Assessor noted that Mr Scott said he has been his appetite was poor, and he had lost a lot of weight initially of 10kg, but he has been gradually gaining his weight by 4kg. The Medical Assessor noted that Mr Scott said he was doing some stretching and strength exercises in the last couple of months, but he has struggled to sustain his exercise regime.
2. Under "Social activities/ADL" the Medical Assessor wrote:

"Prior to the subject injury, he said he would shower every day, or twice a day, and he would cook regularly, and clean the house regularly. He said he would go shopping regularly. He said he was able to drive without restrictions, including driving to Merimbula with his boat.

Since the subject injury, he said he has been showering every 2-3 days when reminded by his partner. He said he has been cooking once or twice a week, otherwise he will have takeaway food. He said he has been cleaning up after himself in the caravan, and his partner also does cleaning, and he does some of the laundry, but his partner does most of it. He said he has been shopping whenever they need something."

1. Under "Findings on Physical examination" the Medical Assessor noted that the appellant presented as a casually dressed man in a black singlet.
2. In his statement dated 9 May 2025, Mr Scott wrote:

"Since the injury I no longer shower every day because I have no energy or motivation to shower and because some days I can not be bothered. Prior to the injury, I used to shower every day and was more attentive to my personal hygiene but now not so much. Prior to the injury I used to enjoy cooking however I now rely heavily on takeaway meals".

1. Mr Scott also refers to a loss in appetite and subsequent weight loss in his statement at page 5 of the ARD.
2. Associate Professor Abdul Khalid, consultant psychiatrist, in a report dated 23 August 2024, assessed Mr Scott as Class 1 for Self-Care and Personal Hygiene and provided the following reasons: "Mild impairment. Able to cook and do household chores but does not maintain hygiene well."
3. In a report dated 22 October 2024 Dr Ashwinder Anand, consultant psychiatrist, assessed Mr Scott as Class 2 for Self-Care and Personal Hygiene and provided the following reasons: "In a typical week, Mr Scott said that he is able to shower independently and also do some cooking and chores."
4. Mr Scott submits that the reasons provided by the Medical Assessor are more consistent with the Class 3 descriptors as opposed to the Class 2 descriptors. Mr Scott submits that this is because the evidence obtained does not suggest he was capable of independent living without regular support nor does it suggest he did not need prompting with self-care.
5. The Appeal Panel considers that apart from "showering every 2-3 days when prompted" the "Reasons for Decision" in the PIRS Rating Form in this scale are consistent with a Class 2 assessment. Mr Scott eats two meals a day, shops, cooks twice a week, does some laundry and cleaning. The Appeal Panel considers that Mr Scott is capable of independent living and looks after himself adequately even if not as well as he did pre-injury.
6. The Appeal Panel concludes after considering all of the factors that a Class 2 is not glaring improbable or inconsistent with the descriptors.
7. Mr Scott submits that the Medical Assessor failed to consider the principles of paragraph 11.12 and has based his assessment on the exhaustive examples recorded at Table 11.1, resulting in a demonstrable error.
8. The Guidelines at 11.12 provide:

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

1. The Appeal Panel notes Mr Scott does not explain how and in what respect the Medical Assessor failed to consider the principles of paragraph 11.12. The fact that the Medical Assessor based his assessment on the exhaustive examples recorded at Table 11.1 is not a demonstrable error. The Appeal Panel rejects that submission.
2. The Appeal Panel is not persuaded that there has been a demonstrable error in the assessment of Self-Care and Personal Hygiene or that the MAC is based on incorrect criteria.
3. This ground of appeal is not made out.

1. Mr Scott submits that the history and facts evidence that he almost separated from his partner twice as a result of the subject injury and his previously established close friendships are severely strained. Mr Scott argues that when considering these findings and his pre-injury Social Functioning, age sex and cultural norms that the best fit category for Social Functioning is more consistent with a Class 3 rating and the Medical Assessor has made a demonstrable error and applied incorrect criteria by assessing Social Functioning as Class 2.
2. The examples under Table 11.4 for Social Functioning in the Guidelines are:

"Class 2: Mild impairment: Existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.

Class 3: Moderate impairment: Previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children."

1. The Medical Assessor assessed Class 2 in relation to Social Functioning noting:

"Since the subject injury, he said his relationship with his partner has been 'not good', as they have less patience with each other. He denied any periods of violence or separation. He said he sees his older child once a month and his younger child has always kept to himself, even before the injury. He said there has not been any significant changes in his relationship with his children, though he doesn't see his oldest child as often as before.

Since the subject injury, he said he not caught up with any of his friend for over 12 months, as he doesn't feel like seeing anybody. He said he has not been talking to them. He said he saw one friend a couple of months ago at the pub, when he went for dinner. He said he goes to the pub for dinner once a month. He said he doesn't engage in any other activities, including fishing. He said he last went fishing a year or so ago.

As he has some strain in his relationship with his partner, without any violence or separation; and maintains contact with his children, he has mild impairment."

1. Under "Social activities/ADL" the Medical Assessor wrote:

"He is 61 years old and lives in Wagga Wagga with his partner of 10 years. He said he has two adult children and no grandchildren. He has no siblings that he is aware of, and he has been estranged from his adopted sibling. He said he has biological mother that he has only seen for a couple of months, but he remains estranged from her. He has been estranged from his adoptive parents.

Prior to the subject injury, he said that his relationship with his partner was 'excellent', without significant arguments or conflicts. He said that he would be in contact with both his children once a week, and he had a good relationship with his oldest child. He was already estranged from his adoptive family.

Since the subject injury, he said his relationship with his partner has been 'not good', as they have less patience with each other. He denied any periods of violence or separation. He said he sees his older child once a month and his younger child has always kept to himself, even before the injury. He said there has not been any significant changes in his relationship with his children, though he doesn't see his oldest child as often as before.

Prior to the subject injury, he said he had never had many friends, but he had 2 lifelong friends. He said he would see them once every fortnight approximately. He said they would drink alcohol, watch football and 'talk sh*t', and this was mostly at home. He said he would go fishing frequently in his boat.

Since the subject injury, he said he not caught up with any of his friend for over 12 months, as he doesn't feel like seeing anybody. He said he has not been talking to them. He said he saw one friend a couple of months ago at the pub, when he went for dinner..."

1. In his statement dated 5 May 2025 (page 4, ARD), Mr Scott wrote: "The constant stress and pressure placed on me also made me feel quite distant from my fiancé. My relationship with my fiancé has been significantly strained since the injury. In fact, we almost ended it twice".
2. At page 5 of the ARD Mr Scott wrote:

"My social withdrawnness has also caused me to lose friendships as a result. I think people are horrible now if I'm being honest. Everyone wants something from you, but they put on a poker face and act like the complete opposite. I only had two friends prior to these issues and now I don't even socialize with them anymore".

1. Associate Professor Khalid, in a report dated 23 August 2024, assessed Mr Scott as Class 3 for Social Functioning and provided the following reasons: "Moderate impairment. Stopped socialising. Relationship with fiancé was affected which is improving now."
2. In a report dated 20 October 2024, Dr Anand, noted assessed Mr Scott as Class 2 for Social Functioning and provided the following reasons:

"He said that his relationship with Karen has improved after they 'cleared the air'. He described he and Karen as being homebodies and stated that they have a lot of laughs together. He stated that he is in contact with his oldest son, but he is estranged from his younger son. He said, 'I do not trust people. I had good mates in the past, but I have lost them now'."

1. Mr Scott submits that the history and facts evidence that he almost separated from his partner twice as a result of the subject injury and his previously established close friendships are severely strained. Mr Scott argues that when considering these findings and his pre-injury social functioning, age sex and cultural norms that the best fit category for Social Functioning is more consistent with a Class 3 rating and the Medical Assessor has made a demonstrable error and applied incorrect criteria by assessing Social Functioning as Class 2.
2. The Appeal Panel accepts that there is strain in the relationship between Mr Scott and his partner and he describes the relationship as having been significantly strained since the injury and almost ended twice. However, there has been no period of separation nor domestic violence in the relationship. The Medical Assessor noted that Mr Scott said he sees his older child once a month and his younger child has always kept to himself, even before the injury. Mr Scott told the Medical Assessor that there have not been any significant changes in his relationship with his children, though he doesn't see his oldest child as often as before.
3. Mr Scott submits that the Medical Assessor ought to have considered Mr Scott's age, and most importantly, the significant change of his lifestyle from one where he was working, socialising and able to maintain relationships to one where he has effectively isolated himself.
4. The Appeal Panel agrees with INA that Mr Scott's submission that the Medical Assessor failed to consider the activities that are usual for the person's age, sex and cultural norms per 11.12 of the Guidelines falls short of overcoming the presumption in Bojko. In this matter, there is no evidence to suggest that the worker's preinjury social functioning was standard or typical. The evidence that was before the Medical Assessor was that Mr Scott was a 'homebody' per Dr Anand's assessment (Reply page 96), and that 'he had never had many friends' per the history given and recorded at page 3 of the MAC.
5. The Appeal Panel notes that Mr Scott has not provided any evidence in support of the submission that his cessation of employment is relevant to the assessment of Social Functioning. There is not, for example, any evidence that Mr Scott had friends employed by INA with whom he has now lost contact.
6. The Appeal Panel accepts that Mr Scott had two lifelong friends who he used to see about once every fortnight approximately but since the injury he has not caught up with any of his friend for over 12 months, although he saw one friend a couple of months ago at the pub when he went for dinner. The Appeal Panel accepts that Mr Scott has lost friendships.
7. The Appeal Panel considers that the "Reasons for Decision" in the PIRS Rating Form in this scale are consistent with a Class 2 assessment. Mr Scott is still in a relationship with his partner and although the relationship has been strained or severely strained at times, there has been no period off separation or domestic violence. Mr Scott's relationships with his children have not changed significantly. Mr Scott has lost friendships.
8. The Appeal Panel concludes, after considering all of the factors, that a Class 2 rating is not glaring improbable or inconsistent with the descriptors.
9. Mr Scott submits that the Medical Assessor failed to consider the principles of paragraph 11.12 and has based his assessment on the exhaustive examples recorded at Table 11.1, resulting in a demonstrable error.
10. The Appeal Panel notes Mr Scott does not explain how and in what respect the Medical Assessor failed to consider the principles of paragraph 11.12. The fact that the Medical Assessor based his assessment on the exhaustive examples recorded at Table 11.1 is not a demonstrable error.
11. The Appeal Panel considers that the evidence including the history obtained by the Medical Assessor is consistent with a Class 2 rating for social functioning.
12. The Appeal Panel is not persuaded that there has been a demonstrable error with this aspect of the MAC or that the MAC is based on incorrect criteria.
13. This ground of appeal is not made out.

1. Mr Scott submits that the Medical Assessor has incorrectly applied a 1/10th deduction on the basis of a pre-existing condition because he has not articulated how a previous condition contributed to the current impairment and how it made a difference in terms of the degree of impairment resulting from the work injury. Mr Scott submits accordingly, that a deduction or apportionment should not be made.
2. Further, Mr Scott submits that the MA fell into error when making a deduction pursuant to s 323 of the 1998 Act on the basis that he had a pre-existing vulnerability from his pre-existing psychiatric injuries. Mr Scott argues that this is not the correct or appropriate test in the application of a deduction for impairment (Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416) and that a deduction should not be made under s 323 for a vulnerability.
3. Under "Details of any previous or subsequent accidents, injuries or condition", the Medical Assessor wrote:

"Prior the subject injury, he said he had mental health issues a long time ago, in his 20's, related to depression and anxiety. He said he had received treatment including antidepressant paroxetine, and he had seen a couple of psychologists, which he did not find helpful. He said he did his own treatment for his head, 'off the internet'. He said he had continued the paroxetine until the subject injury. He said he had weaned himself off three times, but he had to restart it as he was 'not quite level', as he was having a bit of anxiety when he was off it. He denied any psychological symptoms in the time leading up to the subject injury".

1. The Medical Assessor, at 8.e of the MAC, wrote:

"e. Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?

He has pre-existing psychiatric injury, including anxiety, depression and PTSD, from childhood adversity."

1. The Medical Assessor, at Part 11 of the MAC, wrote:

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

1. The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:

(i) His pre-existing depression, anxiety and PTSD was quiescent following successful treatment until the subject injury. However, his prior psychiatric injury can be seen to have recurred as a consequence of the subject injury. It consequently contributes to his current psychiatric impairment, in that if he had not suffered his earlier psychiatric disorder, his current impairment would not be as great.

1. The extent of the deduction is difficult or costly to determine so in applying the provisions of s.323(2) I assess the deductible proportion as one tenth. (can only be used when not at odds with available evidence)"

1. Under Table 2 at page 9 of the MAC, the Medical Assessor wrote: "He has had pre-existing vulnerability from his pre-existing psychiatric injuries, so a deduction of 1/10th has been made".
2. Mr Scott, in his statement dated 9 May 2025 (page 2 ARD), wrote:

"11. I was diagnosed with post-traumatic stress disorder at the age of 55 as well as anxiety and depression at the age of 41 because of childhood trauma. At the time, I saw an EAP counsellor and completed 3 sessions. I was also prescribed antidepressant medication, namely paroxetine 20mg daily which I have taken on and off since then. I also completed online psychological treatment through the Mood Gym Platform. All these combined were extremely helpful for my mental health and allowed me to keep my conditions under control. I was able to complete my day to day domestic and personal care tasks.

1. Prior to my workplace injury, there was no issues in my life outside of work which affected my mental health. I enjoyed a supportive relationship with my fiancé Karen, and we were financially stable. I do not abuse alcohol or drugs, and I was cutting down on smoking up until the time that my symptoms started to get worse, more so in recent times. I understand that I have had previous mental health issues, however they were well under control and managed up until the circumstances surrounding my employment under the management of Sue and Ken".
2. Professor Khalid in his report of 23 August 2024 noted that Mr Scott has pre-existing post-traumatic stress disorder, and his symptoms were under control with treatment. He wrote:

"Mr Scott's prognosis is guarded because he had pre-existing post-traumatic stress disorder, which is more or less in remission, but he has gone on to develop a new condition of adjustment disorder with mixed anxiety and depressed mood".

1. Professor Khalid made no deduction for pre-existing injury or condition.
2. Dr Anand, in his report dated 22 October 2024, wrote:

"Despite Mr Scott having a pre -existing history of complex PTSD and having previously struggled with symptoms of depression and anxiety, he had previously received treatment which was successful, and on the basis of the evidence provided, he was functioning in his everyday life and at work prior to the subject incident. Therefore, a deduction pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 is not warranted in this case. This conclusion is consistent with the available medical evidence and the specifics of Mr Scott's condition".

1. The Appeal Panel noted the various entries relating to mental health issues in the clinical notes and records of the general practitioners between June 2007 and May 2019. These entries include:

(a) on 14 June 2007 Dr Latif noted that Mr Scott was "emotional, tearful, anxiety attach, panic attack, loss of energy, feeling guilty for 2 weeks, last attack couple of days ago which was like thighness [sic] in the chest and butter fly [sic] in the chest". DR Latif wrote: "I think he is suffering from major depression and I start pt on aropax and to r/v in 2 weeks". (ARD pages 113-114);

(b) on 15 October 2007 Dr Padgett noted Mr Scott presented requesting "repeat script for aropax - feeling much better. On occasion gets some nausea feeling. Also sweats a lot" (ARD page 114);

(c) on 6 May 2008 Dr Al-Murieb noted Mr Scott presented reporting "on antidepressant for about one year, problem with weight gain" (ARD page 115);

(d) on 24 August 2009, Dr Taoum noted Mr Scott presented for "recent onset of anxiety symptoms has no apparent reasons for the way he feels stable relation [sic] stable job... feels on the edge sometimes thinks it is all coming from the way he was treated by parants [sic]" (ARD page 117);

(e) on 25 August 2009, Dr Taoum noted Mr Scott presented with "long history of child abuse still has the after effect a lot of anxiety symptoms" (ARD page 118);

(f) on 12 October 2009 Dr Taoum noted that Mr Scott reported "severe anxiety symptoms physical and mental on the verge of mental breakdown" (ARD page 118);

(g) on 27 August 2010, Dr Ayling noted Mr Scott reported "Well controlled by Aropax. Needs occ Valium for anxiety" (ARD page 119);

(h) on 10 March 2011, Dr Mark Smith noted Mr Scott reported that "anxiety is the problem reasonably well controlled on Aropax - back on this 6 months. Takes Valium to help anxiety. Saw a psychologist 3 years ago very helpful "(ARD page 121);

(i) on 18 June 2012, Dr Mark Smith noted Mr Scott reported "still feeling anxious on a daily basis" (ARD page 123);

(j) on 3 January 2013, Dr Goddard noted Mr Scott reported "incr stress currently due to wife having issues...trying to use his antianxiety strategies, do help a bit" (ARD page 124);

(k) on 14 November 2013, Dr Mark Smith noted Mr Scott reported that he was "anxious perhaps once a fortnight - where he feels muddled in the head" (ARD page 124);

(l) on 25 September 2015, Dr Roper noted that Mr Scott reported that he was "very anxious - just been suspended from work" (ARD page 128);

(m) on 1 October 2015, Dr Roper noted Mr Scott reported that "brain was in over drive - over thinking" (ARD page 129);

(n) on 17 December 2015, Dr Roper noted Mr Scott reported that he was "very anxious after he was threatened by 2 hooligans on ice who smashed windows and wreaked havoc in the neighbourhood...his depression has taken a turn for the worse after stopping Aropax 2 months ago (his own doing)". Dr Roper changed the dose of Aropax from 200mg tablet 1.5 daily to 1 daily. (ARD page 129);

(o) on 24 December 2015, Dr Roper noted Mr Scott reported that he was "feeling less anxious" (ARD page 130);

(p) on 10 February 2016, Dr Ting Hin Tse noted Mr Scott had a:

"background of anxiety/depression, PTSD after being victim of child abuse when young going through stressful time with family( marriage breakdown, currently living with son) and work...seeing psychologist at work who would like him to take stress leave after consulting with doctor" (ARD page 131);

(q) on 17 February 2016, Dr Tse noted Mr Scott reported that he was "still experiencing depressed mood and low energy most time" (ARD page 132);

(r) on 19 May 2016, Dr Goddard noted Mr Scott reported that he was "in a bad place but thnks [sic] he's improving" (ARD page 132);

(s) on 20 July 2016, Dr Tse noted Mr Scott reported that he:

"quitted [sic] job in late April due to anxiety and back pain been unemployed since - looking for jobs but without much success - now ran out of money and wants centrelink cert to say he quitted [sic] because of anxiety and back pain...Open to idea of seeing psychologist but first has to be able to afford one" (ARD page 133);

(t) on 19 July 2017 Dr English noted Mr Scott reported "reason for visit: Anxiety/Depression" (ARD page 135);

(u) on 2 August 2018, Dr Cao noted "Being diagnosed with anxiety/depression for more than 10 years, on PRN Valium for 9 years reported he had tried Aropax in the past, did not like it so stopped, did not very other antidepressants" (ARD page 136);

(v) on 3 August 2018, Dr Cao noted Mr Scott attended and advised that he "could not afford private psychologist, advised to see psychologist at headspace" (ARD page 137);

(w) on 10 September 2018 Mr John Sheppard noted Mr Scott reported that "he has a long history of anxiety and depression. In recent times anxiety has been more of an issue...provided education around anxiety and depression" (ARD page 138);

(x) on 30 April 2019, Dr Angel Fu noted Mr Scott reported that he was "feeling like stress has got on top of him again... keen to trial paroxetine again (stated he came off it twice when he was feeling better) advise he may need to be on it lifelong" (ARD page 139), and

(y) on 28 May 2019, Dr Cao noted Mr Scott reported that he had "a lot of stress recently with girlfriend, anxiety worse anxiety a bit better after starting paroxetine, would like to continue" (ARD page 139).

1. The Appeal Panel is satisfied that the Medical Assessor made a deduction under s 323 of the 1998 Act on the basis of both a vulnerability and pre-existing conditions, namely, depression, anxiety and post-traumatic stress disorder.
2. In Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416, Beech-Jones J reiterated the need for evidence of an actual pre-existing condition rather than a predisposition or susceptibility. A mere vulnerability does not give rise to a deduction.
3. The Appeal Panel is satisfied that in so far as any part of the deduction was made for a vulnerability, that is, a demonstrable error.
4. This ground of appeal is made out.
5. The Appeal Panel, therefore, will determine the s 323 deduction.
6. Section 323 of the 1998 Act provides:

"(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. In Southwell v Qantas Airways Ltd [2024] NSWSC 497, (Southwell) Wright J commented on the operation of s 323 at [50], stating that it involves three enquiries:
   • Firstly, what the extent of the resulting impairment is.
   • Secondly, whether the pre-existing condition contributed to the impairment.
   • Thirdly, if it did, what proportion of the impairment was due to the pre-existing condition.
2. This requires a consideration of whether the pre-existing condition contributed causally to the impairment suffered as the result of the workplace injury, as well as whether a portion or part of that level of impairment was due to the pre-existing condition, rather than the workplace injury.
3. Campbell J stated at [45] in Ryder v Sundance Bakehouse [2015] NSWSC 526 (Ryder) with respect to a deduction under s 323, "To put it another way, the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great."
4. The Appeal Panel was satisfied that the pre-existing conditions, depression, anxiety and post-traumatic stress disorder, contributed to the impairment assessed.
5. As noted above, the Appeal Panel is satisfied that the appellant had long-standing pre-existing psychological conditions, namely, depression, anxiety and post-traumatic stress disorder. There is considerable evidence in the clinical notes and records of the general practitioners between June 2007 and May 2019 of pre-existing psychological difficulties. It is difficult to ascertain how active these were just prior to his workplace injury or how much impairment if any they caused.
6. The Medical Assessor noted that Mr Scott said he had continued the Paroxetine until the subject injury. Mr Scott told the Medical Assessor that he had weaned himself off three times, but he had to restart it as he was "not quite level", and having a bit of anxiety when he was off it. Mr Scott denied any psychological symptoms in the time leading up to the subject injury.
7. Although Professor Khalid made no deduction for the pre-existing condition, he provided no reasons in support of that view despite finding that Mr Scott had "pre-existing post-traumatic stress disorder which is more or less in remission." It is not clear whether Professor Khalid had been provided with the clinical notes and records of the general practitioners between June 2007 and May 2019, but if he was, there was no reference to them in his reports.
8. The Appeal Panel notes that Dr Anand, in his report dated 22 October 2024, made no deduction pursuant to s 323 of the 1998 Act. Dr Anand found that Mr Scott had a pre -existing history of complex post-traumatic stress disorder and previously struggled with symptoms of depression and anxiety. Dr Anand noted that Mr Scott had previously received treatment, which was successful, and on the basis of the evidence provided, was functioning in his everyday life and at work prior to the subject incident. Therefore, Dr Anand concluded that a deduction was not warranted.
9. However, the Appeal Panel notes that according to the list of "Documents provided" on page 2 of his report dated 22 October 2024, Dr Anand was not provided with the clinical notes and records of the general practitioners for the period between June 2007 and May 2019. Dr Anand also did not take into account that Mr Scott was on Paroxetine, which controlled his symptoms and improved his functioning, prior to the work injury.
10. Although the Appeal Panel does not consider that the evidence available demonstrates that the depression, anxiety and post-traumatic stress disorder had any great impact on Mr Scott's functioning pre-injury, Mr Scott was taking Paroxetine, which controlled his symptoms and improved his functioning. It appears that Mr Scott benefited from the effects of treatment as he had received effective long-term treatment which had resulted in apparent substantial elimination of any permanent impairment pre-injury. If WPI for the pre-existing condition had been assessed using the PIRS, an increase of 1% WPI for effects of treatment would have been reasonable.
11. The Medical Panel considers having regard to the clearly significant long standing mental health history and the use of Paroxetine, which controlled his symptoms and improved his functioning pre-injury, there is evidence that the pre-existing conditions contributes directly to the impairment assessed. The Appeal Panel is satisfied that the impairment assessed would not have been as great but for the pre-existing conditions.
12. The Appeal Panel concluded that it was appropriate to make a deduction pursuant to s 323(2) of 10% of total WPI because the precise deduction is difficult to determine. While there is medical evidence of various symptoms and problems pre-injury, there is almost no evidence that addresses the actual level of function in each of the PIRS scales.
13. The Appeal Panel on reviewing the evidence does not consider that a 10% deduction is at odds with the evidence.
14. The Appeal Panel finds that a deduction of one tenth should be made pursuant to s 323(2) for the pre-existing condition, namely, depression, anxiety and post-traumatic stress disorder. The Appeal Panel notes that this deduction is the same as the one made by the Medical Assessor.

1. INA submits that the Medical Assessor erred in assessing a Class 2 impairment under the PIRS category of 'travel', which amounted to an application of incorrect criteria and/or a demonstrable error.
2. The examples under Table 11.3 for Travel in the Guidelines are:

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

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

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

1. The Medical Assessor assessed Class 2 in relation to Travel noting:

"He said he has been driving to the shops, and he confirmed that he has been driving by himself.

1. On page 7 of the MAC, the Medical Assessor wrote: "My assessment differs from Dr Anand's report in the areas of self-care, social and recreational activities, travel and concentration".
2. In his statement dated 9 May 2025 (page 5 ARD), the appellant wrote:

"32. Since the accident I hardly leave my premises and hardly drive. I am able to drive when necessary in my local area but try to avoid this where possible. I have no interest in the outside world."

1. Associate Professor Khalid in his report dated 23 August 2024 assessed Mr Scott as Class 2 for Travel and provided the following reasons: "Mild impairment. Can travel in local areas."
2. In a report dated 22 October 2024 Dr Anand, assessed Mr Scott as Class 1 for Travel and provided the following reasons: "He can drive locally with some apprehension but denied doing any interstate or overseas travel."
3. INA submits that the Medical Assessor acknowledged at page 7 of the MAC that his assessment differed to that of Dr Anand with respect to Travel but provided no reasons for why he disagreed with the assessment of Class 1 for Travel by Dr Anand (Reply page 95).
4. The Appeal Panel notes that the Medical Assessor in rating Class 2 for Travel was satisfied that Mr Scott can travel without a support person but only in familiar areas. The Appeal Panel infers from this rating that the Medical Assessor differed from the opinion and rating made by Dr Ananad of Class 1. Further, The Appeal Panel notes that Dr Anand 's rating Class 1 on the basis Mr Scott could travel locally with some apprehension but denied interstate and overseas travel would appear to be inconsistent with the descriptors in Table 11.3.
5. INA submits that the Medical Assessor had before him Mr Scott's bank statements which show that in 2025 he has travelled from his home in Wagga Wagga to Pambula, Merimbula, Cooma, Yass, Jamieson, Bright, and Sydney, that is, to locations that cannot be considered local. INA argues that the assessment by the Medical Assessor of a mild impairment for travel is entirely inconsistent with the evidence that Mr Scott had been travelling away from his home and the Medical Assessor made an unfounded and unexplained assumption that Mr Scott was only travelling locally. INA submits that the Medical Assessor ought to have questioned Mr Scott further regarding any support and accompaniment of a support person on Mr Scott's travels to Pambula, Merimbula, Cooma, Yass, Jamieson (Victoria), Bright (Victoria) and Sydney and therefore did not take a complete history that addressed his need for support while travelling.
6. The Appeal Panel accepts that these records show that Mr Scott was away from Wagga Wagga in February, March and April 2025. The Appeal Panel notes that one of the places he visited was Merimbula, where Mr Scott would drive to with his boat to go fishing before his injury (MAC page 4).
7. The Appeal Panel notes that it is not necessary that the Medical Assessor refer to every document submitted or explain in detail the criteria applied to reach his professional judgment (Campbelltown City Council v Vegan [2006] NSWCA 284.) Justice Basten in Rahman v Insurance Australia Ltd (t/as NRMA Insurance) [2022] NSWSC 1079 said at [63]:

"The Court of Appeal has, on more than one occasion, remarked on the volume of material which is routinely provided to medical assessors under the Act and under workers' compensation legislation. (Providing it to the court is also commonplace, though misconceived.) Not only is there no general law principle requiring an assessor to refer in reasons accompanying a certificate to all the documentation to which he or she has had access, but rather, the function of the assessor is inconsistent with any such obligation.

A judicial officer is not required to refer to each piece of evidence in a judgment determining the resolution of a dispute to which expert opinion is critical. As noted above, the function of the medical assessor is quite different. The assessor is not resolving a dispute between experts but forming his or her expert opinion. The application of expertise permits (and indeed requires) the assessor to be discriminating as to that material which he or she considers significant and that which may be disregarded or given little weight. There is no requirement to identify material falling into the latter category, nor to justify its exclusion from consideration."

1. The Appeal Panel considers that the bank statements are not conclusive that Mr Scott travelled during the periods referenced by INA, "without supervision" and "without a support person". The bank records do not provide evidence that Mr Scott was able to travel to new environments without supervision and such an inference cannot be drawn from these records.
2. The Appeal Panel notes that the Medical Assessor had before him ALAD 4 August 2025. At page 136 of the ALAD 4 August 2025, on 19 November 2024, Dr Kolieni noted that Mr Scott is "going to go around with his wife in their caravan". The Appeal Panel therefore accepts that Mr Scott was accompanied by his wife on these trips in 2025.
3. The Appeal Panel is not persuaded that the Medical Assessor failed to disclose his path of reasoning to assess a Class 2 impairment and has therefore fallen into demonstrable error.
4. INA submits that the Medical Assessor failed to engage with the Guidelines, and, in particular, did not consider (either adequately or at all) Mr Scott's circumstances and compare those circumstances to the activities that are usual for Mr Scott's sex, age and culture.
5. The Appeal Panel notes that INA does not explain how and in what respect the Medical Assessor failed to engage with the Guidelines and consider Mr Scott's circumstances apart from what has been dealt with above.
6. The Appeal Panel does not accept that a reasonable inference which can be drawn from the available material is Mr Scott's level of impairment more closely aligns with a Class 1 impairment. The Appeal Panel considers that the evidence including the history obtained by the Medical Assessor is consistent with a Class 2 rating in Travel.
7. This ground of appeal is not made out.

1. INA submits The Medical Assessor erred in assessing a Class 2 impairment under the PIRS category of Concentration, Persistence and Pace, which amounted to an application of incorrect criteria and/or a demonstrable error.
2. The examples under Table 11.5 for Concentration, Persistence and Pace in the Guidelines are:

"Class1: No deficit, or minor deficit attributable to the normal variation in the general population. Able to pass a TAFE course or university course within normal time frame.

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 2 for Concentration, Persistence and Pace. In the PIRS Rating Form, the Medical Assessor wrote:

Since the subject injury, he said his concentration 'has gone', as he will be talking to his partner and then forgets what he says. He said he has continued to play Euchre, until he loses, possibly 1-3 games, which can last up to 15 minutes each game. He said he has done a bit of re-training, as he was able to obtain his forklift licence 8 months ago and he has also obtained his RSA to serve alcohol around a similar time.

As he has been able to complete two retraining courses, he has mild impairment."

1. Under "present symptoms", the Medical Assessor noted that the appellant said:

"Since the subject injury, he said his concentration 'has gone', as he will be talking to his partner and then forgets what he says. He said he has continued to play Euchre, until he loses, possibly 1-3 games, which can last up to 15 minutes each game".

1. The Medical Assessor noted Mr Scott stated that prior to the subject injury, his concentration was "pretty good", he said he did not read much and would play Euchre on the computer for up to hours.
2. On page 3 of the MAC, the Medical Assessor wrote:

"Since the subject injury, he has not been working. He said he has done a bit of re-training, as he was able to obtain his forklift licence 8 months ago and he has also obtained his RSA to serve alcohol around a similar time. He said it was difficult, as there were too many people, but he was able to complete the training. He felt that the trainer as 'a nasty old sh*t' and he nearly walked out"

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

"He presented as a casually dressed man in a black singlet. He had an average build and appeared to be his stated age. He engaged cordially in the assessment and provided relevant answers to questions asked, spontaneously supplying detail.

He appeared mostly euthymic, and displayed some emotional reactivity congruent with the content of the conversation during the interview.

He spoke articulately and in a logical sequence most of the time, without much prompting, with intact prosody.

He complained of intrusive recollections of the alleged bullying at work.

He had pessimistic thoughts of worthlessness, and death fantasies without suicidal ideations.

He was alert. He was able to provide a detailed account of his injuries and function. He did not appear to have difficulties sustaining his concentration in the assessment."

1. In his statement dated 9 May 20-25, Mr Scott wrote (page 5 ARD)

"I constantly have low motivation and have trouble focusing and concentrating on simple tasks such as watching a television show. I am also forgetful quite often and have been struggling to recall things I have done in a day".

1. Associate Professor Khalid, in a report dated 23 August 2024, assessed Mr Scott as Class 2 for Concentration, Persistence And Pace and provided the following reasons: "Mild impairment. Has difficulty focusing."
2. In a report dated 22 October 2024 Dr Anand, assessed Mr Scott as Class 1 for Concentration, Persistence And Pace and provided the following reasons: "He described his concentration as fine. He said, 'If I enjoy something, I am able to concentrate fairly well.' There were no issues related to his concentration noted on mental state today..."
3. INA submits that the Medical Assessor's findings on mental state examination show that Mr Scott demonstrated normal pace, did not report any difficulties in concentration throughout the examination or any issues in persisting with the examination throughout the length of the examination.
4. The Appeal Panel notes that the Medical Assessor report that Mr Scott spoke in a logical sequence most of the time, "without much prompting". The Appeal Panel considers that the mental state examination is just one aspect to be taken into account in the assessment. While the ability of a worker to focus and tell "his story" is an important part of the examination, the Appeal Panel notes that Mr Scott would have told his story on multiple occasions in other examinations and when seeing his solicitors before the assessment by the Medical Assessor. In those circumstances, observations in the mental state examination are not necessarily a good indicator of the level of impairment in this scale.
5. The Medical Assessor accepted that Mr Scott continued to play games that required concentration, and that he had completed two re-training courses since his injury (MAC page 10). The Appeal Panel noted that the two course that Mr Scott had completed were basic courses not TAFE or university level courses. Mr Scott told the Medical Assessor that he still plays Euchre, until he loses, possibly one-three games, which can last up to 15 minutes each game. However, the Appeal Panel notes that this involves playing a game which does not necessarily require focus on an intellectually demanding level. Further, Mr Scott does not play this game for an extensive period.
6. The Appeal Panel does not accept that Mr Scott's self-reported history that his concentration was gone is at odds with the Medical Assessor's findings on examination. The fact that Mr Scott required some prompting in the assessment indicates some problems with concentration and focus.
7. The Appeal Panel does not consider that the findings on mental state examination more closely align with a Class 1 impairment as assessed by Dr Anand, instead of the Class 2 assessed by the Medical Assessor (Reply page 96). The Medical Assessor would have taken his clinical observations into account in making his assessment as well as Mr Scott's self-reported functioning.
8. The Appeal Panel does not consider that the class rating arrived at by the Medical Assessor was glaringly improbable, or that his reasoning process was unsupportable in the face of the evidence.
9. The Appeal Panel is satisfied that the Medical Assessor did not fall into error by failing to engage with the Guidelines criteria for assessing impairment, and by failing to consider Mr Scott's objective presentation when assessing this category.
10. This ground of appeal is not made out.
11. In summary, the assessment of total WPI by the Appeal Panel was the same as that made by the Medical Assessor. In those circumstances the Appeal Panel will confirm the MAC as the review has not led to a different result and should not be interfered with (Robinson v Riley [1971] 1 NSWLR 403).
12. For these reasons, the Appeal Panel has determined that the MAC issued on 2 October 2025 should be confirmed.