Secretary, Department of Communities and Justice (Corrective Services)

WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); claim by employer against 15% whole person impairment (WPI) finding for psychological injury; whether Medical Assessor (MA) failed to consider employer's expert; whether MA failed to give adequate reasons; Held - employer's expert evidence was not before the MA; MAC a nullity; matter reverted to the President.

1. On 12 September 2025, the appellant, Secretary, Department of Communities and Justice (Corrective Services), lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Baker, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 19 August 2025.
2. The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
   • the assessment was made on the basis of incorrect criteria, and
   • the MAC contains a demonstrable error.
3. The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
4. Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
5. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed

1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). "WPI" is reference to whole person impairment. "Baseline WPI" is a reference to the total WPI assessed before deduction for the effect of pre-existing injury, condition or abnormality pursuant to s 323 of the 1998 Act. "Assessor" is a reference to the "Medical Assessor".

1. On 14 July 2025 an amended referral was made to the Medical Assessor for an assessment of WPI caused by psychiatric and psychological disorders with a date "30 October 2021 - (nature and conditions) 1/1/2014 - 30/10/2021".
2. Ms Harrington had been employed by the appellant's employer in the above period as a "Scheduling Clerk". She encountered ongoing bullying and harassment as her position had previously been filled by Corrective Services officers and the Corrective Services officer community was not supportive of and indeed upset by civilians taking on their roles. In addition Ms Harrington was yelled at, isolated and targeted by a male coworker for many years.
3. Ms Harrington left work permanently in October 2021.
4. The Medical Assessor assessed a total of 17% WPI from which he had deducted 1/10th leaving a total of 15% WPI.

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. A re-examination was not required as the alleged error had not been established for the reasons given below.

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 which have been considered by the Appeal Panel.

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 ground of appeal was that the Medical Assessor had erred in rating the psychiatric impairment rating scale (PIRS) category at 2 when he had not referred to the reports of the expert retained by the appellant employer, Dr Thurairetnam Sivaruauban.

1. The MAC was issued on 19 August 2025 and in listing the evidence the Medical Assessor stated:[1]

"The following documents were referred by the Commission for this assessment:

• the Application and attached documents
• the Reply and attached documents
• Application to Lodge Additional Document and attachments to be lodged by the respondent by 11 July 2025, and
• A copy of the members Certificate of Determination consent orders dated 10/7/25."

1. In the body of his report the Medical Assessor reported regarding travel as follows:[2]

The claimant could drive in her local area alone. She could drive familiar routes. She could not drive more than about 45 minutes as she would become too fatigued. The claimant had not travelled overseas and could not drive to unfamiliar locations as she would become too agitated and distressed."

1. As to Ms Harrington's consistency of presentation the Medical Assessor said:

"The claimant's presentation was consistent with other reports that were forwarded with this referral. The claimant's presentation was consistent with this psychiatric diagnosis also made by other medical assessors. The claimant presented as a reliable historian who did not exaggerate or misrepresent the many years of bullying and harassment she had endured whilst employed by this employer."

1. At [10c] the Medical Assessor was asked to comment on other medical opinions and evidence before him. He analysed Ms Harrington's statement of 29 May 2025 and the report of Dr Assad Saboor dated 6 November 2023, Dr Saboor being retained by Ms Harrington.
2. The Medical Assessor also considered a report dated 12 April 2023 by a psychologist Dr Lisa Chandler.

1. The appellant employer noted that the reports of Dr Suratnim Sivaruaban dated

13 February 2025 and 4 July 2025 were attached to an Application to Lodge Additional Documents lodged by the Department and dated 11 July 2025. 2. The appellant employer noted that the Medical Assessor did not refer to Dr Sivaruaban's reports. Dr Sivaruaban it was stated had taken a history regarding Ms Harrington's travel that was inconsistent with that recorded by the Medical Assessor. 3. The appellant employer submitted that Dr Sivaruaban in his report of 23 February 2025 took a history that Ms Harrington travelled outside of her hometown of Broken Hill to seek creative outlets through textile workshops and was able to drive for at least two hours in a single stretch before stopping in order to manage her fatigue. 4. We were referred to the relevant page of the Application to Lodge Additional Documents in that regard. 5. Had the Medical Assessor considered the reports of Dr Sivaruaban, the appellant employer submitted that her ability to drive would have been shown to be no different to the ability of the ordinary people described in class 1. 6. It was submitted that while it was not necessary for the Medical Assessor to set out every document, the evidence by Dr Sivaruaban was central to his decision regarding this category. 7. We were referred to Tattersall v Registrar of the Workers' Compensation Commission of NSW & Anor[3] and Wentworth Community Housing Limited v Brennan[4] in this regard. 8. Alternatively it was submitted that on the assumption that the Medical Assessor had considered Dr Sivaruaban's report, his failure to give proper reasons as to why he rejected the history taken by Dr Sivaruaban and accepted the history given by the respondent was not explained. It was submitted that "at a minimum the Medical Assessor should have put to the respondent Dr Sivaruaban's history as to her ability to travel". 9. Ground two in essence argued that therefore there had been a demonstrable error in the assessment of class 2. We were referred to the relevant descriptors in table 11.3 of the guides and a proper consideration of Dr Sivaruaban's history would have led to a finding of the class 1 rating as it is common knowledge that motorists are recommended to take rest breaks to manage fatigue and other road safety related matters. 10. We were referred to a Medical Appeal Panel case of Cook v Secretary Department of Communities and Justice.[5] 11. It was submitted that the Medical Assessor had failed to have regard to the totality of the evidence before him. 12. The appellant employer argued that the reports of Dr Sivaruaban demonstrated an ability to travel that was inconsistent with the finding by the Medical Assessor, and Ms Harrington's failure to disclose those particulars constituted a demonstrable error with the result that the class 2 rating should be reduced to a class 1.

1. We noted the thorough and well-argued submissions by Ms Harrington. They are on the record but were of little assistance in the resolution of this dispute. This is because neither the appellant employer nor Ms Harrington addressed a further scenario that the Medical Assessor never had the contents of the late documents containing Dr Sivaruaban's reports before him.

1. The terms of the referral of 14 July 2025 described the Medical Assessor's brief as follows:[6]

"The brief provided to the Medical Assessor includes

3. Application to Lodge Additional Document and attachments to be lodged by the

4. A copy of the members Certificate of Determination - consent orders dated 10/7/25."

1. The Medical Assessor acknowledged that:[7]

"The following documents were referred by the Commission for this assessment:

• the Application and attached documents
• the Reply and attached documents
• Application to Lodge Additional Document and attachments to be lodged by the respondent by 11 July 2025, and
• A copy of the members Certificate of Determination consent orders dated 10/7/25."

1. In reviewing the appellant employer's submissions, it occurred to us that its assumption that the additional documents had been before the Medical Assessor might not be correct. There was no indication that the appellant employer had made any enquiries to that effect, and we discovered that the additional documents, which had been lodged on 11 July 2025, had not been forwarded to the Medical Assessor.
2. This gives rise to a conundrum, as the appellant employer has brought its appeal pursuant to s 327(3)(c) and (d) of the 1998 Act:

"(c) the assessment was made on the basis of incorrect criteria,

(d) the medical assessment certificate contains a demonstrable error."

1. It is axiomatic that for a Medical Assessor to have applied incorrect criteria, or have made a demonstrable error, the evidence on which an appellant relied had to be before him/her. Where the evidence is not before a Medical Assessor, the applicable ground is s 327(3)(b):

"(b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against)"

1. In this case it would be probable that these facts would explain why the evidence could not reasonably have been obtained and would accordingly be admissible. We do not however have power to determine a medical dispute that was not before the Medical Assessor.
2. Whilst technically the MAC could be confirmed, the circumstances of such a determination would deprive the appellate employer of procedural fairness and natural justice. There has been an unfortunate error that was not the fault of the parties. Through an oversight, the late documents were not delivered to the Medical Assessor, and it follows that his determination is a nullity.
3. For these reasons, the matter is accordingly reverted to the President for consideration.

[3] [2017] NSWSC 453.

[4] [2019] NSWSC 152.