WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); psychological injury; assessment under the psychiatric impairment rating scale (PIRS); assessment on the day of the examination; relevance of past statements; Held - MAC confirmed.

1. On 22 April 2025 Ronald Sommer lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Aman Suman, who issued a Medical Assessment Certificate (MAC) on 2 April 2025.
2. Mr Sommer 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 President's delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that the Medical Assessor had made a demonstrable error in not setting out his pathway of reasoning in assessing Mr Sommer in class 2 for social and recreational activities under the Psychiatric Impairment Rating Scale (PIRS). We conducted a review of the original medical assessment, limited to the grounds 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).

1. Mr Sommer was employed by the State of New South Wales (Ambulance Service of NSW) (the Ambulance Service) as a paramedic. He ceased work on 21 November 2021 and the Ambulance Service did not dispute that he suffered a psychological injury in the course of his employment. The only dispute raised was as to the extent of permanent impairment.
2. Mr Sommer was assessed by Dr Allan at the request of his solicitors on 20 November 2023. Dr Allan assessed 19% whole person impairment (WP). He was assessed by Dr Modem at the request of the Ambulance Service. In his report dated 19 June 2024. Dr Modem assessed 9% WPI.
3. The Medical Assessor assessed 10% WPI under the PIRS, placing Mr Sommer in class 2 for self-care and personal hygiene, social and recreational activities, travel and social functioning. The Medical Assessor assessed Mr Sommer in class 3 for concentration, persistence and pace and class 5 for employability. He added 1% for the effect of treatment, resulting in an assessment of 10% WPI.

1. Both parties made written submissions. They are not repeated in full, but we have considered them.
2. In summary, Mr Sommer submitted that the Medical Assessor made a demonstrable error and applied incorrect criteria in his assessments under the PIRS tables of social and recreational activities and social functioning.
3. With respect to social and recreational activities, Mr Sommer said that it was "clear from the facts found by the Medical Assessor that he struggled to participate in activities outside the home, confirmed by his wife's statement. He said that the Medical Assessor recorded with respect to social activities that "over the years, I have given it up, I can't manage it anymore."
4. He further submitted that the Medical Assessor erred in considering that the only reason he does not play golf was "physical health stressors". Mr Sommer contrasted the Medical Assessor's comment to his statement dated 12 November 2024. He said that where there was more than one conclusion was open, the Medical Assessor was required to explain why he preferred class 2 over class 3.
5. Turning to social functioning, Mr Sommer said that assessment in class 2 was inconsistent with the Medical Assessor's "factual findings" recorded in the summary table in the MAC and that the use of separate bedrooms meant that he and his wife were effectively separated whilst living under the same roof.
6. Mr Sommer submitted that he should be assessed in class 3 for each of the impugned categories, resulting in 23% WPI.
7. In reply, the Ambulance Service submitted that that Mr Sommers's submissions took the Medical Assessor's reference to the statement "over the years, I have given it up, I can't manage it anymore" out of context and that those words related only to babysitting his granddaughter. The Ambulance Service said that, while Mr Sommers is unable to babysit, the Medical Assessor recorded that he has been able to visit his father in a nursing home and play guitar for the residents, play golf with friends and go on holidays. The history was consistent with that taken by Dr Modem. The Ambulance Service noted that clinical records and Dr Modem's report confirmed that Mr Sommers had symptoms in his hands relevant to his ability to play golf. It said that the Medical Assessor gave adequate reasons for his assessment.
8. With respect to social functioning, the Ambulance Service said that the history recorded by the Medical Assessor was consistent with assessment in class 2, the same assessment made by Drs Allan and Modem. It said that the fact that Mr Sommers and his wife slept in separate rooms was not consistent with "periods of separation" when Mr Sommers relied on his wife for assistance with day to day tasks.

1. We 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, we determined that it was not necessary for Mr Sommer to undergo a further medical examination because the assessment by the Medical Assessor does not disclose error.

1. We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
2. The parts of the MAC that are relevant to the appeal are set out below.

1. The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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[1] the Court of Appeal held that an 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. In Queanbeyan Racing Club Ltd v Burton[2] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.

1. The Medical Assessor set out a detailed psychiatric history and said that Mr Sommer told him that he began to experience mood disturbance which impacted on his activities in 2017. The Medical Assessor summarised the development of the condition over the following four years until Mr Sommer stopped working in late 2021 and saw his general practitioner who referred him to a psychologist in 2022. The Medical Assessor said:

"Mr Sommer told me that he would visit his dad, who was in a nursing home, once a week. He told me, 'I would play the guitar for the resident once every four to six weeks when I went to see my father'. Mr Sommer told me that he also went on holidays with his wife on four occasions over the last two years, 'My wife had booked holidays. I have enjoyed some of the holidays. On many occasions, I felt quite anxious and stayed in my room.'

Mr Sommer said he has enjoyed playing golf with his friends since he stopped working in 2021. He highlighted, 'I would go down to play golf once every three weeks with colleagues. I felt comfortable with them'.

Mr Sommer told me that he avoided any other social interaction. He told me, 'I would feel anxious, especially around crowds. I avoided anyone behind my back. I was always anxious'. Mr Sommer told me that he continued relying on excessive alcohol to help manage anxiety and sleep over the next two years. He continued to experience triggers related to his past trauma, although he was able to manage his mental health with the psychological input he received. Mr Sommer told me that he also helped babysit for his granddaughter: 'Over the years, I have given it up. I can't manage it anymore'."

1. The Medical Assessor summarised Mr Sommers' presentation over the last six months by reference to the PIRS tables. With respect to social and recreational activities he wrote:

"Mr Sommer does feel anxious around crowds. He told me that he avoids attending to any social or family events; 'I make excuses'. Mr Sommer has been able to play golf with his friends fairly regularly since he stopped working. He also visited his dad and played guitar for other clients at the aged care facility. He had been on holiday with his wife in 2023-2024, some of which he enjoyed. He had to recently give up playing golf and playing guitar due to his physical health stressors.

Considering all available information, I am of the opinion that class 2 is the appropriate classification for Mr Sommer's ability to socialise and enjoy recreational activities."

1. The Medical Assessor set out the reasons for his assessment for social functioning:

"Mr Sommer told me he had lost contact with most of his friends, especially the ones he used to play golf with, over the last six months. He has been unable to play golf or play guitar due to Dupuytren's contracture affecting his hands bilaterally. He told me that his contact with his family is limited. Mr Sommer told me that his relationship with his wife has been strained, 'We sleep in separate rooms. There is no intimacy'."

1. Summarising his opinion, the Medical Assessor said:

"Mr Sommer is a middle-aged gentleman living with his supportive wife in Grafton.

Mr Sommer had worked as a paramedic since 1988. He had been managing his work well till around 2017. Mr Sommer's presentations since 2017 indicate he struggled with post- work at the end of 2021. Mr Sommer received timely input from a general practitioner and a psychologist, including trial of psychotropic treatments. He could not tolerate the side effects and had to stop the medication. He received ongoing input from a psychiatrist and psychologist over the next four years. Despite ongoing mental health input, he continued to experience fluctuating mental health.

Mr Sommer received a trial of medicinal cannabis over the last six months, which has helped to improve his sleep, anxiety and aching. He continues to struggle with his ability to socialise and take on any work commitment, considering his ongoing struggle with complex mental health stressors.

Mr Sommer has used alcohol to manage his mental health stressors, including drinking five or six beers per day, two to three days a week, to help manage his mental health stressors.

I was not able to elicit significant past psychiatric history or Mr Sommer presenting with specific personality traits or deficits contributing to his presentation.

Overall, as per the review today, I am of the opinion that Mr Sommer's presentation/symptoms satisfy the criteria of post-traumatic stress disorder as per DSM-5 diagnostic criteria."

1. The Medical Assessor summarised the reasons for his assessments again in the PIRS table.

1. The Medical Assessor was required to assess Mr Sommer as he presented on the day of the examination[3] and to prepare a report based on his own clinical findings, using his own clinical judgement.
2. It is relevant to observe that the important part of the description of each class in the PIRS is the level of impairment - e.g. no deficit, mild impairment, moderate impairment. The PIRS recognises that there a range of conduct which can be described as normal. Assessment in class 1 is appropriate where there is "no deficit or minor deficit attributable to the normal variation in the general population".
3. Rather than providing criteria for assessment, what follows the description of the level of impairment in each class are examples of limitations on activities which are consistent with the level of impairment. In Jenkins v Ambulance Service of New South Wales (Jenkins)[4] Garling J said:

"I am satisfied that the descriptions of the activities which give rise to a conclusion by an AMS of the extent of a disability of an individual by reference to each table in the PIRS, are simply, in my view, examples of activities which would indicate an assessable level of disability. Those examples, on their face, are not necessary to be found in each case, but may, in any particular case, be sufficient to support a conclusion as to the level of disability."

1. In State of New South Wales (NSW Department of Education) v Kaur[5] Campbell J cited Wingfoot Australia Partners Pty Ltd v Kocak[6] and said that the function of a Medical Assessor:

"is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise. It is sufficient, as their Honours pointed out at [55], that:

'The statement of reasons... explain the actual path of reasoning in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law'."

1. The Medical Assessor clearly set out the factors he took into account in assessing Mr Sommer in class 2. It therefore cannot be said that the Medical Assessor failed to set out his path of reasoning. Mr Sommer submitted that the Medical Assessor was wrong in the way he dealt with two pieces of information.
2. First, the Ambulance Service was correct to highlight that Mr Sommer's submissions took a statement in the MAC out of context and that the reference to the task that he cannot manage was babysitting, rather than playing golf. Mr Sommer said that the Medical Assessor was required to give further reasons because more than one conclusion was open.
3. The examples in the Guidelines for assessment in class 2 (mild impairment) and class 3 (moderate impairment) are:

"Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).

"Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn."

1. While recreational activities can be undertaken alone, the table measures the extent of a worker's participation in the activities undertaken and their interaction with others.[7]
2. Dr Allan assessed Mr Sommer in class 3 in his report dated 20 November 2023 because he did not exercise, play golf or attend activities with friends and he was isolated and avoidant. The history in Dr Allan's report is brief and does not refer to the activities he relied on when completing the PIRS table.
3. Mr Sommer's own statement dated 12 November 2024 described a number of the events which led to his injury and provided his comments on Dr Modem's report. Mr Sommer said that he was not motivated to play golf but also that a chronic back injury made exercise difficult.
4. The statements from Mr Sommer's wife are relevant but they are dated 6 November 2023 and 12 November 2024, some time before the examination. It is somewhat difficult to know what weight to give those statements when each says it "should not be seen as a finalised evidentiary statement."
5. The statements provide useful information for the Medical Assessor but the Medical Assessor was required to take his own history from Mr Sommer at the time of the examination, asking questions that elicited the information he required to make an assessment of impairment. He was not bound to accept the content of the statements where they differed from the other information available to him and the history obtained at the time of the examination.
6. There is no reason not to accept that what the Medical Assessor recorded was what he was told by Mr Sommer - that he had stopped playing golf and guitar because of his physical health. Dr Modem recorded that Mr Sommer's back injury is the subject of a separate claim, suggesting it is a significant condition.
7. That information is consistent with material in the file in mid 2024 when he told the practitioner at Acacia Psychology that his "back is quite painful and finding this quite debilitating, finds unable to bend down" and "has not been playing golf as back too sore." At that time he continued "to sing at Nursing Home, states finds purpose in this." At the time of the final consultation on 20 September 2024, the psychologist recorded that Mr Sommer "had surgery on little finger on left hand, stitches out yesterday".
8. The notes from Mr Sommer's treating practitioners also confirm that he has travelled extensively in the years since he ceased work. Inevitably those activities are social and recreational. Even if they were organised by his wife, Mr Sommer has participated and the travel has been frequent. While the travel has not always been easy, he has continued to go. Taking one example only, there are references in the notes to Mr Sommer "really looking forward" to going to Thailand in June 2023 as well as sailing around the Mediterranean in July. In August he told his psychologist that he "had a wonderful time away" even though he had to take anti-inflammatory tablets for pain and suffered anxiety when in a crowd. According to the history provided to Dr Modem, he travelled again in September 2023, February 2024 and July 2024.
9. The Medical Assessor was required to form an opinion based on Mr Sommer's presentation at the time of the examination and to select the class in the PIRS table that corresponded with his assessment. He was not required to explain why he had not assessed him in another class. The reasons that he gave included anxiety in crowds, not attending family functions, playing guitar and golf and he set out the explanation Mr Sommer gave for stopping those activities. The MAC shows that the Medical Assessor has appropriately weighed up the factors relevant to his assessment. There is no error in the Medical Assessor's assessment in class 2.

1. The social functioning scale measures the strength of a worker's relationships. Each of Dr Allan and Dr Modem assessed Mr Sommer in class 2. The Medical Assessor observed that Mr Sommer's wife was supportive.
2. The examples in the PIRS are:

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

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

1. Garling J's comments about the examples in the PIRS are relevant here. Mr Sommer's submissions conflate separate bedrooms and a lack of intimacy with "periods of separation". It is not uncommon for couples in intact relationships to sleep in separate rooms. The Medical Assessor's assessment shows that he was aware of the strain in Mr Sommer's relationship with his wife and considered the relevance of separate rooms.
2. Separation implies a termination of the domestic relationship, either permanent or temporary. While there is significant strain in the relationship between Mr Sommer and his wife, the matters relied on in Mr Sommers' submissions show that the relationship is ongoing and that Mr Sommers relies heavily on his wife and her management of the household and their finances. The Medical Assessor recorded that Mr Sommer prefers to go out with his wife. Those statements are not consistent with living separate lives.
3. The Medical Assessor recorded that Mr Sommer's relationships are strained and that contact with his family is limited. Those factors are consistent with assessment in class 2 and the Medical Assessor has used the PIRs appropriately in reaching his assessment.
4. For these reasons, we have determined that the MAC issued on 2 April 2025 should be confirmed.

[1] [2006] NSWCA 284.

[2] [2021] NSWCA 304 at [26].

[4] [2015] NSWSC 633 at [65].

[5] [2016] NSWSC 346 at [26].

[6] [2013] HCA 43; 252 CLR 480

[7] Ballas v State of New South Wales [2020]NSWCA 86 at [100].