1. On 25 February 2025 Secretary, Department of Education, the appellant employer lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Bradley Ng, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 29 January 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 Guidelines) 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.

1. On 18 December 2024 a referral was made to the Medical Assessor for an assessment of WPI caused by psychiatric and psychological disorders on 4 December 2018.
2. CKA (the respondent) joined the Department of Education as a lead Compliance Officer in Business Excellence HR in Blacktown in November 2016. She worked there until 30 June 2018 but problems began soon after she began work. There were multiple difficulties in the workplace covering a wide variety of topics which had been previously documented and concerned bullying behaviour.
3. CKA was put on light duties and seconded to the State Archives after she commenced her WorkCover claim between July and December 2018. When her secondment ended, she went on workers compensation.
4. By 2020 she was then assigned to a suitable duties program working in the library at Penrith High School for some months. That ceased because of the COVID-19 pandemic but she was assigned to Denmore Park Primary School doing library work later in 2020 where she worked for one and a half years. She was working six and a half hours per day, four days per week at the end of her time there.
5. She was then assigned to Colyton Public School performing front desk duties four days a week. She was there for two months but there were bullying issues and she perceived that people did not want her there at all.
6. She discovered later that it was not a permanent position and she experienced pay issues as well.
7. She was then sent to Nepean High School and given suitable duties where she worked four days a week, seven hours a day on the front desk.
8. Her mental state deteriorated because of ongoing industrial issues.
9. She was eventually medically retired in October 2022 and has not worked since.
10. The Medical Assessor found a 22% 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. As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because no error was established in the MAC.

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 issue raised on appeal is that the Medical Assessor erred in rating the Psychiatric Impairment Rating Scale (PIRS) category of self-care and personal hygiene as a class 3 assessment.

1. In dealing with CKA's social activities the Medical Assessor said:[1]

"For the last one year CKA has been living in Port Macquarie at the home of her son's father. He was a forty nine year old chef and neither of them were in a relationship. They were not in a relationship together. They had not been in a relationship for many years, since their son was born, and this was by choice. They had a very good friendship and she described him as a 'great dad'. She had to move in with her son for financial and other reasons. Their nine year old son was fit and healthy and attended a mainstream school and will commence Year 4 this year. CKA's ex-partner also had a twenty three year old daughter living on the Central Coast. CKA had a good relationship with her.

During the school year, CKA might attend to her son early in the morning. She would feed him breakfast and get him ready for school. She then drove him to school and dropped him off and then returned home. She stated that she might pass out or lose time or spend time crying or being distressed. She worried about everything. She worried about finances and how she would get back to work. She did very little around the house. At 2:30pm she went to collect her son. She tried to do housework in short bursts, but was easily distracted: 'time goes.' She tried to organise herself and tried to vacuum, but would never get tasks completed. She described herself as quite perfectionistic and would obsess about minor things at times, at the expense of completing the task.

CKA did not do any cooking or do the dishes. She sometimes did the laundry. She had bags and bags of laundry in her own room. She was able to do her son's laundry. Her ex-partner did his own. CKA noted that she barely attended to personal hygiene. She rarely showered or cleaned her teeth. She had poor personal hygiene at times. She did not brush her hair and had dreadlocks. Her main focus was taking care of her son and helping him with homework and projects. She always cared for him."

1. In the Table 11.8 PIRS Rating Form, the Medical Assessor rated class 3 for the category of self-care and personal hygiene. Her reasons were:

"Based on the description of her functioning, CKA does provide some care of her son, but it is the bare minimum. She does not care for herself properly. She does not attend to personal hygiene. She does very little housework and laundry. She does not do any cooking. She is unable to care for herself to an adequate degree and relies on her ex-partner, qualifying this is moderate impairment."

1. The appellant employer submitted that a class 2 rating was more appropriate than the class 3 rating given by the Medical Assessor.
2. We were referred to the Medical Assessor's history regarding CKA's care for her son, who was attending year 4, and the appellant employer emphasised that part of CKA's duties that were concerned with looking after him. We have reproduced that history above.
3. We were referred to the reasons given by the Medical Assessor for ascribing a class 3 rating for this category in the Table 11.8 PIRS Rating Form, which we have also reproduced above. The appellant employer submitted that there were some inconsistencies between CKA's reported inability to care for herself and her ability to care for her son.
4. The appellant employer contrasted the care that she admitted giving for her son, which included doing his laundry and making him breakfast. Taking care of him was said to be her "main focus". That activity was contrasted with CKA's reported inability to care for herself, which included difficulty in doing the housework and the laundry, and that she did not cook or do dishes.
5. The appellant employer's medical expert, Dr Yajuvendra Bisht also noted that inconsistency and disagreed with the class 3 rating given by CKA's expert, Dr Elsa Yeung. Whilst Dr Yeung found that CKA could not live independently, it was noted that CKA was able to perform the above functions and meet the necessary parenting needs for her son who was at the time of Dr Yeung's report on 3 November 2023, eight years old.
6. We were referred to Dr Bisht's comment that CKA would not be able to parent a young child adequately if she herself was unable to live independently. The care that CKA gave her son was an indication that she was capable of making simple meals for him and/or ordering takeaway meals, Dr Bisht advised. Further, the appellant employer noted that Dr Bisht disagreed with Dr Yeung's opinion that CKA would be unlikely to parent her son if she required someone to look after her several times a week.
7. The appellant employer also referred to Dr Bisht's disagreement with Dr Yeung that CKA's caring for her son was incompatible with the descriptors for a class 3 rating in that she clearly did not rely require someone to look after her several times a week.
8. The appellant employer also submitted that the Medical Assessor had noted herself that CKA is now living with her ex-partner and father of her son for financial reasons, rather than because she could not live independently. There was no history, it was argued, of the father providing care to CKA or their son, nor of his taking over household tasks. There was no indication that CKA relied on the father for her self-care and personal hygiene, it was submitted.
9. The appellant employer submitted that the proven ability by CKA to care for her son in the many ways described reflected a greater capacity for her own personal care and hygiene than was found by the Medical Assessor.
10. We were referred to a medical panel decision of Westpac Banking Corporation v Margaret Ioannides.[2] The facts of that case were referenced by the appellant employer which noted that a Medical Appeal Panel found that a class 4 assessment was erroneous because the Medical Assessor in that case had failed to have regard to the fact that the worker was able to care for her mother.
11. We were referred further to Campbell v State of New South Wales (NSW Police Force)[3] which is also a case where on the facts before the Appeal Panel the class 2 rating was challenged, without success. That was a case in which the worker was able to care for her children and we were referred to some findings by that Medical Appeal Panel. It was CKA's ability to care for her son that indicated a greater capacity for self-care and personal hygiene than that found by the Medical Assessor.

1. CKA referred to Chapter 11.12 of the Guides noting that the descriptors within the categories were examples only.
2. It was the role of the Medical Assessor to consider the evidence from both the worker and other evidence before undertaking an assessment. The Medical Assessor had undertaken that task, it was submitted.
3. CKA submitted that whilst the care she gave for her son might not have been appropriate to be considered in the self-care and hygiene category, nonetheless the level of care provided by her was a relevant factor in determining the appropriate class as it applied to her in this category.
4. The Medical Assessor had done that in all the passages relied on by the appellant employer, CKA argued. She submitted that the finding by the Medical Assessor that CKA "might" attend to her son early in the morning suggested that there was an impairment as to the level of care that she could provide.
5. Similarly when the Medical Assessor noted that CKA "sometimes" did the laundry again, the level of care given was compromised by CKA's psychological condition. That was an inference that could be established by virtue of the comment by the Medical Assessor that whilst CKA did provide some care for her son, "... it is the bare minimum".
6. CKA submitted that the appellant employer's reliance on the statement that she had moved in with her son's father primarily for financial reasons was misleading and was "pure speculation", as there was no evidence within the MAC to support that conclusion. What was recorded was that "she had to move in with her son for financial and other reasons."
7. What was clear from the reasoning, it was submitted, was that CKA suffered restrictions in her ability to care for her son and that the father provided the care which she can no longer provide.
8. CKA submitted that the appellant employer had not had regard to all of the evidence, and had placed its own emphasis on selected portions of it.
9. CKA submitted that the finding by the Medical Assessor that she did the "bare minimum" was consistent with a class 3 and not a mild impairment pursuant to class 2.
10. The appellant employer's reliance on the opinion of Dr Bisht was of little relevance and as it was now well-established that another medico-legal assessor's assessment did not demonstrate that the Medical Assessor was incorrect.
11. CKA submitted that Ioannides could be distinguished on its facts.

1. The PIRS is established as the rating system for assessing psychiatric/psychological impairment, by virtue of Chapter 11 of the Guides. Chapter 11 sets out six categories of behaviour to be considered, each being divided into five classes, ranging in seriousness from 1 to 5. Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired.
2. Chapter 11.12[4] provides:

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

1. The assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11.[5]
2. The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[6] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the Approved Medical Specialist (AMS) had been glaringly improbable. His Honour found that the Panel had fallen into jurisdictional error. He said at [23]:

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

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

1. The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
2. The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides 'the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment': Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are 'examples only': see Jenkins v Ambulance Service of New South Wales[7]. The Appeal Panel said 'they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected': Appeal Panel reasons at [37]."
3. In Glenn William Parker v Select Civil Pty Ltd,[8] another case regarding assessment of psychiatric disorder, Harrison AsJ cited [23] of Ferguson with approval at [65]. Her Honour said at [66]:

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

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

1. It is accordingly necessary for the Panel to be satisfied that the assessment by the AMS in this category was erroneous in one of the following ways (to use the reference by Campbell J in Ferguson):

(a) if the categorisation was glaringly improbable;

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

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

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

1. In Lancaster v Foxtel Management[9] Basten AJ noted at [88]-[89] that these four considerations, although not inaccurate, were not a statement of legal principles, and that care should be taken in applying the explanation in place of s 327(3) and s 328(2).
2. The tension between these descriptors in the many different possible scenarios within the six categories of the PIRS and the classifications thereof, appears to be the basis for the reservation in Chapter 11.12 that the descriptors are intended to be non-binding examples, giving a general guide to the level of the behavioural consequences of the particular psychiatric disorder, and thus allowing a wider discretion to be applied than if the descriptors were intended to be strict criteria.
3. The appellant employer has thus to establish that the class 3 rating given by the Medical Assessor was more than simply a disagreement about which reasonable minds might differ. The employer has presently relied on two factual issues. Firstly it submits that the rating is inconsistent with the findings by the Medical Assessor that CKA was able to care for her nine-year-old son.
4. The appellant employer fairly set out the basis for the Medical Assessor's finding, in that he reported that CKA did not do any cooking or the dishes. She sometimes did her laundry but there were bags and bags of laundry in her own room. She could not complete her attempts at vacuuming, and was easily distracted from doing housework in short bursts. She barely attended to her personal hygiene and rarely showered or cleaned her teeth. She did not brush her hair and she had dreadlocks.
5. These restrictions it was submitted, were inconsistent with other activities that the Medical Assessor recorded. The appellant employer referred to the findings by the Medical Assessor that CKA "might" attend to her son in the morning. She would feed him breakfast, get ready for school, drive him to school and both drop him off and collect him after school. She could do her son's laundry and her main focus was taking care of him and helping him with homework and projects.
6. Moreover, it was argued that the finding by the Medical Assessor that CKA was unable to care for herself, with the corresponding inference that therefore she was unable to live independently, was not supported by the evidence. The Medical Assessor had failed to find that her ex-partner had taken over household tasks for her, nor had he found that CKA relied on him for her self-care and personal hygiene.
7. The first difficulty with this approach is that the submission was based on the evidence taken by the Medical Assessor. The appellant employer thus had to establish that the Medical Assessor had not understood the import of the facts he had established. The employer thus could not establish that the Medical Assessor was unaware of significant factual matters, or that he had misunderstood them. Secondly, the employer was required to show that the assessment was more than a mere difference of opinion about which reasonable minds may differ. The matters alluded to regarding CKA's inability to care for herself were relevant in this category and we did not understand the appellant employer to submit that the class 3 rating was glaringly improbable.
8. The error was said to lie in an unsupportable reasoning process, in that the evidence regarding CKA's ability to look after her son carried with it the inference that she did not have a moderate impairment.
9. Table 11.1 of the Guides provides the relevant descriptors:

"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. We were referred to the opinion of Dr Bisht, the expert retained by the respondent, who advised that CKA would not be able to parent a young child of under 10 years adequately, if she herself was unable to live independently.[10] This opinion was given in the context of a review of CKA's expert, Dr Yeung, who had given a class 3 rating for this category.
2. Whilst such reports can no doubt be of assistance when a Medical Assessor is considering the case before him, they are no more or less than other evidence regarding the dispute, and it is not part of the Medical Assessor's function to choose between competing arguments or opine on the correctness of other opinions. He is required to give his own opinion on the medical question by applying his own medical experience and medical expertise.[11]
3. The evidence shows that CKA has been living in Port Macquarie since September 2022 with her son at his grandfather's house, where her ex-partner (and father of her son) also resides. Although they were not in a relationship together, CKA and the ex-partner enjoyed a strong friendship. These facts were the basis of the appellant employer's submission that CKA was in that relationship for financial reasons and, as we understood the appellant, it could not therefore be said that CKA was unable to live by herself independently.
4. Unfortunately, CKA herself did not refer to her living situation in her statement of 21 November 2024. However a full history was taken by Dr Yeung in her report of 3 November 2023:[12]

"She reported a deterioration of her mental state after October 2022 when she was medically retired. She reported increased suicidal ideation. She was not looking after herself. Her ex-partner had to step in to assist her and the couple moved to Port Macquarie in September 2022. She reported a decline in self-care. She struggled with her personal hygiene. For example, she saw the parents moving away from her and then she realised she has not showered for three weeks. Similarly, her son also made comment that 'her breath make him gag' and then she realised she has not brushed her teeth for weeks."

1. Although Dr Bisht assessed CKA on 29 August 2023, he did not take a history of CKA's domestic situation.[13] The Medical Assessor had the benefit of a face-to-face consultation, as well as having available that evidence. Whilst it was submitted that CKA moved to her present domestic situation "primarily for financial reasons" the Medical Assessor actually wrote, to repeat:

"... She had to move in with her son for financial and other reasons..."

1. The "other reasons" we are satisfied included that the ex-partner had to step in to assist her because she was not looking after herself. The corollary to that is that indeed CKA was not able to live independently.
2. The appellant employer sought to adopt the view of Dr Bisht that the evidence of CKA's ability to care for her son carried with it an inference that that she would not be able to do so if she were unable to live independently. Such conjecture ignored the fact that CKA was indeed parenting her son adequately, but her level of self-care was such as to offend her parents and her son, as related by Dr Yeung.
3. As noted above, a class 3 moderate impairment includes the concept that a claimant could not live independently without regular support. The facts are consistent with the proposition that CKA was getting regular support from her domestic circumstances. It was submitted that the Medical Assessor, besides noting that the ex-partner did his own laundry, failed to elicit evidence that the ex-partner was providing care to CKA for her son. This submission, with respect, ignored the statement by the Medical Assessor when giving his reasons at Table 11.8 for the class 3 rating:

"...[CKA] is unable to care for herself to an adequate degree and relies on her ex-partner..."

1. For these reasons, the Appeal Panel has determined that the MAC issued on 29 January 2025 should be confirmed.

[3] [2024] NSWPICMP 221.

[5] See 11.15-11.21 at Guides page 65 and Table 11.7 at Guides page 66.

[6] [2017] NSWSC 887.

[7] [2015] NSWSC 633.

[8] [2018] NSWSC 140.

[9] [2022] NSWSC 929.

[11] Wingfoot Australia Pty Ltd v Kocak [2013] HCA 43 at [47]; Western Sydney Local Health District v Chan [2015] NSWSC 1968 at [13].