1. On 29 November 2024, State of New South Wales (NSW Police Force) (the appellant) 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 1 November 2024.
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. Mr Ralph's working career has been with the NSW Police Force. He completed schooling up until year 12 and then undertook a bachelor's degree in Justice Studies (Policing), before attending the Police Academy and attesting in 2005. He started his career in general duties, then worked in specific task forces including Strike Force Raptor, Gang Squad and detectives.
2. Over the course of his employment with the appellant, he was exposed to many and varied traumatic incidents, including fatalities, suicides and assaults. He was assaulted and threatened on numerous occasions. In September 2022, he was involved in a "critical incident" where a high speed chase resulted in the death of the driver, which Mr Ralph witnessed. That incident represented a significant deterioration in Mr Ralph's mental health and represents the deemed date of injury in this case.
3. Mr Ralph made a claim for lump sum compensation which was disputed on the basis that he had not reached maximum medical improvement. Proceedings were commenced in the Personal Injury Commission (Commission), and Member Benk issued a Certificate of Determination by consent whereby the matter was referred for assessment before a Medical Assessor.
4. The MAC was issued on 1 November 2024, which assessed Mr Ralph as suffering from 19% whole person impairment. The appellant appeals against that assessment.

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 both parties were satisfied that the appeal could be determined on the papers and the Appeal Panel are of the view that there is sufficient information available in the MAC and the supporting material to determine the appeal.

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.
2. In summary, the appellant raises three (or four) grounds of appeal:

(a) the Medical Assessor applied incorrect criteria in his assessment of social and recreational activities under the Psychiatric Impairment Rating Scales (PIRS);

(b) the Medical Assessor applied incorrect criteria and the MAC contains a demonstrable error in respect of the PIRS of concentration, persistence and pace, and

(c) the Medical Assessor applied incorrect criteria in assigning 2% whole person impairment for the effects of treatment.

1. These submissions are then presented in a different order in the substance of the appeal. The specific submissions raised in respect of each ground of appeal will be discussed below under findings and reasons.
2. In reply, the respondent submits that there is no justification for the Appeal Panel to intervene in the MAC in respect of social and recreational activities, and in concentration, persistence and pace, and the evidence shows that the worker has had substantial treatment and medication and this has provided a significant reduction in impairment, and there is no evidence that the worker will not revert to his original degree of impairment if treatment is withdrawn.

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. The issue in dispute in this case concerns three major issues - the assessment made by the Medical Assessor under the PIRS in two different scales, and the addition for the effects of treatment made. The Appeal Panel's consideration of the matter is limited to those issues (per Basten JA in Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 at [26]):

"Secondly, s 328(2) requires that the review "is limited to the grounds of appeal on which the appeal is made." Because the gateway function of the Registrar is satisfied if "at least one of the grounds" has been made out, it appears that the Appeal Panel is not limited to the ground held by the Registrar to have been made out, but may consider all grounds of appeal raised in the appellant's application. On the other hand, it is clear that the Appeal Panel is not permitted to look for errors which are not part of 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 will first deal with the challenge made by the appellant to two of the PIRS and then address the submissions made concerning the effects of treatment.
4. As two of the grounds of appeal concern the PIRS, it is appropriate to consider how those scales are to be applied by Medical Assessors. Permanent impairment is assessed in accordance with the Guidelines (s 322(1) of the 1998 Act). Psychiatric disorders are assessed under Chapter 11, using the PIRS. Clause 11.11 of the Guidelines sets out the six scales, which are described in the following terms: "Behavioural consequences of psychiatric disorder are assessed on six scales, each of which evaluates an area of functional impairment".
5. Each area of functional impairment is assessed under a scale "using class descriptors". The class descriptors range from no or minor deficit, through to totally impaired. This is explained by Campbell J in Ferguson v State of New South Wales [2017] NSWSC 887:

"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 by his injury, and the classes between are in an ascending order of impairment."

6. Those descriptors provide examples of activities, but "are examples only". Account should be taken of "the person's cultural background" and consideration must be given to activities "that are usual for the person's age, sex and cultural norms".
7. In Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633, Garling J considered the construction of the PIRS in the context of the examples given. He provided some commentary on the construction of the Guidelines:

"The submission of the plaintiff that, in assigning a class of impairment to each scale, the AMS is restricted only to the examples of activities listed in the tables or, alternatively, to those activities as a minimum, cannot be accepted." (at [57])

8. He goes on to describe the examples as "generic and general in their description" (at [62]).

1. The Medical Assessor assessed class 3 in respect of this PIRS, providing the following reasons in the PIRS table on page 10 of the MAC:

"Since the subject injury, he said he has less than 5 friends, and he has lost some of his other friends. He said he sees his friends once a month or so, and he said they will visit each other's houses and they will have a talk. He said he goes to the gym depending on his level of motivation, and he has an exercise physiologist and personal trainer to keep him motivated. He said he will go out if his wife tells him to go to family events, though he doesn't participate much, he usually doesn't talk and hides away after a while. > > As he regularly meets with friends, albeit with reduced frequency and tends to avoid active participation in social gatherings, he has moderate impairment."

2. Table 11.2 of the Guidelines provides the criteria for assessment under this PIRS. Relevant to the submissions given by the appellant, classes 2 and 3 provide:

Mild impairment: Occasionally goes 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. The appellant submits that the assessment of class 3 in this PIRS is unsupported by the evidence and inconsistent with the examination findings. The appellant refers to Ballas v Department of Education (State of NSW) [2020] NSWCA 86 (Ballas), submitting that the fact that the worker has lost some friends is conduct properly directed to his ability to maintain relationships, relevant for the functional area of social functioning. In including that consideration, the Medical Assessor has taken into account irrelevant considerations.
2. In reply, the respondent submits that the Medical Assessor was obliged to take into account all relevant evidence and make his own assessment of the appropriate class to assign the worker. The respondent further submits that there is no requirement for the Medical Assessor to discuss every piece of evidence before him; the reasons provided did not need to be extensive and the reasons provide are sufficient; and the ground of appeal reflects a mere difference of opinion on categorisation. Intervention by the Medical Appeal is only justified in certain circumstances, with reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36 (Wark) "as Per Campbell J".
3. The Appeal Panel accept that some of the Medical Assessor's reasons in respect of this PIRS are in breach of what was said in Ballas at [93]-[94]. Although there has been some (appropriate) caution on interpreting Ballas too widely (see Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929 at [72] and Botha v Secretary, NSW Department of Customer Service [2024] NSWSC 781 at [14]), in the circumstances of the present case, the appellant's reliance on Ballas is entirely appropriate.
4. The Medical Assessor has explicitly referred to the number of friendships Mr Ralph maintains as well as his loss of friendships. The criteria for social and recreational activities do not contemplate these as relevant considerations for this PIRS. These considerations arise under social functioning, which references "friendships lasting years", "loss of some friendships", "established relationships severely strained", "relationship ended (eg lost partner, close friends)". In considering the extent to which the respondent has lost some friends, the Medical Assessor has applied incorrect criteria.
5. Whilst, as the respondent submits, the Medical Assessor is entitled to reach his own conclusions and is not required to discuss every piece of evidence before him, that is not the ground of appeal raised by the appellant. This is not a mere difference of opinion on categorisation, it is the application of incorrect criteria by which the Medical Assessor has reached his conclusion on this PIRS. The Appeal Panel would also note that the reference to Wark is not a decision of Campbell J. Wark is referred to in Ferguson v State of New South Wales & Ors [2017] NSWSC 887 (Ferguson).
6. Ferguson is regularly cited and relied upon, particularly [23] and [24] of that decision. In those paragraphs, Campbell J discusses the findings made by the Appeal Panel in that case. He is not making any findings of his own. The extent to which Ferguson is authority really relates to the final sentence of [24]:

"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."

7. Given the basis of the appellant's submissions, Ferguson has limited application in the present circumstances.
8. Having established that the Medical Assessor applied incorrect criteria in his assessment, the Appeal Panel must assess and determine the correct class under this PIRS. The history taken by the Medical Assessor and recorded in the PIRS is set out above. Mr Ralph sees his friends on a reduced basis following his work injury, but still engages with them once a month by visiting each other at their house and talking. He also attends the gym depending on his level of motivation. He goes to family events at the encouragement of his wife but doesn't participate extensively.
9. When considering the totality of the evidence, the Appeal Panel's view is that the correct assessment is class 2. Mr Ralph engages in a social and recreational activity on a regular basis (attending the gym) without prompting from his wife or requiring a support person. He socialises with his friends around once a month, again without evidence of a support person or prompting. There is a restriction in attendance at family events.
10. The criteria for class 3 impairment requires that a worker "rarely goes out to such events" and "Will not go out without a support person". Mr Ralph is able to engage in social activities on a regular basis (albeit reduced from his pre-injury functioning), more frequently than rarely, and does so without a support person or prompting. The history taken is inconsistent with the criteria for class 3 impairment.
11. The criteria for class 2 impairment indicates that a person "occasionally goes to such events" (i.e. on a reduced basis from pre-injury status) "without a support person" (which, on the evidence, Mr Ralph does not require) and "does not become actively involved". The history taken by the Medical Assessor is entirely consistent with class 2 impairment.
12. It is noted that Dr Nagesh provides a class 3 impairment in this PIRS. He takes no history of the respondent attending the gym or visiting his friends. He focuses only on family events. It may be at the time of Dr Nagesh's assessment Mr Ralph was not undertaking that activity, compared with when he saw the Medical Assessor. Dr Bhandari's report of 25 May 2024 supports that conclusion, where he states "Mr Ralph indicated that he had stopped exercising, but has now recommenced this".
13. The correct assessment under this PIRS is class 2 and the MAC will be revoked on that basis.

1. The Medical Assessor assessed class 3 under this PIRS, providing the following reasons:

"Since the subject injury, he said his concentration has been terrible, and he said he can read up to a couple of minutes. > > His concentration has been poor, and he has struggled to even assemble a home exercise bike and follow instructions. > > He was alert, appeared grossly cognitively intact and was able to sustain his concentration for the duration of the assessment. > > As he has poor concentration, but not to the extent it would be observable in a brief conversation, he has moderate impairment."

2. The appellant challenges this assessment on two bases, submitting that the Medical Assessor applied incorrect criteria, and the MAC contains a demonstrable error.
3. The criteria for assessment of this PIRS appears in Table 11.5 of the Guidelines:

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.

Moderate impairment: Unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.

1. The appellant submits that the Medical Assessor has applied incorrect criteria because he has applied the wrong category of impairment in the PIRS. The appellant submits that the evidence does not justify an impairment of more than class 2. The Medical Assessor only considered the worker's reported symptoms without a proper review of the facts. Despite a clear inconsistency between the respondent worker's reported symptoms and his presentation on the day, the Medical Assessor did not acknowledge this or elaborate further. He ignored his own examination findings, contrary to cl 1.6(a) of the Guidelines.
2. The appellant further submits that the Medical Assessor failed to give consideration to the respondent's attendance at the gym. The appellant submits that if he was indeed unable to read for up to five minutes, it would have been impossible for him to concentrate and attend the gym. The appellant also challenges this ground on the basis of demonstrable error, submitting that the Medical Assessor failed to consider evidence before him, largely on the same basis as above with reference to the respondent's attendance at the gym.
3. In reply, the respondent submits that there is no justification for the Appeal Panel to intervene in the MAC. The submissions in respect of this ground of appeal are non-specific and do not address the particular submissions of the appellant, but rather repeat the submissions given in respect of social and recreational activities, which are summarised above.
4. The Appeal Panel do not accept the appellant's submissions in respect of this ground.
5. The Medical Assessor has taken a full history relevant to the respondent's functioning under this PIRS. He has not, as occurred under social and recreational activities, considered matters relevant to another area of functioning.
6. The appellant's submissions are particularly addressed to Mr Ralph's attendance at the gym. The Appeal Panel do not accept, as a matter of construction under the Guidelines, that attendance at a gym involves "following complex instructions" as contemplated in the Guidelines. Even taking the examples given "operating manuals, building plans", and those that follow as examples per cl 11.12 and Jenkins, there is an identifiable difference between those activities, that require concentrating on specific and written or visual instructions, versus attending a gym for the purpose of exercise, and using gym equipment.
7. In the context of the PIRS assessing the area of functioning being concentration, persistence and pace, it is also noted that participating in activities at the gym generally involve short bursts of concentration and may include rests between activities. There are no written instructions, manuals, or patterns to follow. There is, however, an element of "persistence" when attending the gym on a regular basis. That must be considered in the context of the totality of the history recorded by the Medical Assessor and the other information available.
8. In circumstances where Mr Ralph is recorded by the Medical Assessor as having difficulty reading beyond a couple of minutes, poor concentration, has struggled with assembling a home exercise bike and following instructions (which are within the scope of the examples given in this PIRS), it is not correct to suggest that Mr Ralph should be assessed in class 2. There has been no application of incorrect criteria in respect of this PIRS, nor does the MAC contain a demonstrable error.

1. The Medical Assessor added 2% for the effect of treatment. The explanation is provided on page 9 of the MAC:

"His treatment with EMDR and medications have made significant improvements, but he has ongoing symptomatology and impairment, so an adjustment of 2% for the effect of treatment is reasonable."

2. The appellant submits that the Medical Assessor made a demonstrable error by allowing 2% for the effects of treatment. The appellant submits that it is self evident from the assessment of permanent impairment that there has not been an apparent "substantial or total elimination" of the permanent impairment in circumstances where the Medical Assessor assessed 17% whole person impairment. The appellant submits that the history taken indicates limited treatment at best, and there is no clear explanation of how this treatment has assisted with stabilising symptoms reported. It is also not treatment that if withdrawn would result in the worker reverting to his prior level of impairment.
3. The respondent submits that the evidence shows the worker has had substantial treatment and this has provided a significant reduction in his impairment. There is no evidence that the worker will not revert to his original impairment if treatment is withdrawn.
4. This allowance is provided for in cl 1.32 of the Guidelines:

"1.32 Where the effective long-term treatment of an illness or injury results in apparent substantial or total elimination of the claimant's permanent impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%. This percentage should be combined with any other impairment percentage, using the Combined Values Chart. This paragraph does not apply to the use of analgesics or anti-inflammatory medication for pain relief."

5. The interpretation of cl 1.32 was considered in Zoric v Secretary, Department of Education & Ors [2024] NSWSC 131 (Zoric). His Honour Chen J set out three steps that must be followed (at [59]):

"The clause may thus be understood to involve, and require findings about, the following "steps":

6. First, whether there has been effective long-term treatment of an illness or injury.
7. Secondly, whether that treatment results in apparent substantial or total elimination of the claimant's permanent impairment.
8. Thirdly, whether the claimant is likely to revert to the original degree of impairment if treatment is withdrawn."
9. This analysis, in his Honour's own words, largely aligns with that of Adamson J in Peachey v Bildom Pty Ltd (Quality Siesta Resort Pty Limited and Quality Hotel) [2020] NSWSC 781.
10. The appellant submits that the clause cannot apply where 17% whole person impairment has been assessed. This is rejected for two reasons. Firstly, the appellant has argued (successfully) that the assessment of impairment undertaken by the Medical Assessor was incorrect. Therefore the factual basis for this submission is incorrect. Secondly, taking such an approach is inconsistent with Zoric as does not appropriately engage with the steps set out therein.
11. The Medical Assessor's reasons in respect of his conclusion are not particularly extensive. On that basis, it is difficult to understand whether the Medical Assessor has appropriately applied the clause as interpreted in Zoric. Accordingly, the Appeal Panel are satisfied that the MAC contains a demonstrable error.
12. In those circumstances, the Appeal Panel must apply the clause correctly.
13. The first step is to determine whether there has been effective long term treatment. The Medical Assessor refers to treatment undertaken on page 2 of the MAC:

"He saw a counsellor once, then he saw a psychologist from November 2022 until now. He found it of moderate benefit, with EMDR reducing his anxiety and intrusive memories related to the 2022 incident, though he has struggled to process the incident in 2012. > > He saw a psychiatrist for treatment since February 2023. He has been on Pristiq 100mg, and melatonin, which he found of some benefit with improving his mood. He has tried various other medications when he had been admitted, but he did not find them effective. > > He has had a three-week admission in July 2023, which he found helpful as well."

14. His treatment regime at the time of the assessment is set out:

"He is currently on Pristiq 100mg and melatonin and Madopar. > > He is seeing his GP every three months. > > He is seeing his psychologist every month. > > He is seeing his psychiatrist every month. > > There are no further plans for treatment escalation or medication changes."

15. Whilst there is evidence of treatment in a variety of forms, it is difficult to see that it has been "effective long-term treatment". The Medical Assessor refers only to EMDR and medications having made significant improvements. The EMDR treatment was effective but was ceased in May 2024 (see the report of Dr Bhandari dated 25 May 2024). Mr Ralph's pharmaceutical treatment for his psychological symptoms has changed over time with consideration, in May of 2024, to increasing dosage of Desvenlafaxine, although that was not undertaken as of August 2024.
16. The Medical Assessor describes this ongoing medication as providing "some benefit" with improving his mood but in the MAC describes the worker as reporting a full range of pervasive, impairing, and at least moderately severe symptoms of depression:

"He said he has been feeling depressed constantly, and he has not been able to enjoy much, apart from occasionally feeling a bit better with his children. His sleep has been poor, and he said he gets about 3-4 hours of sleep, even with melatonin. His appetite has been variable, with periods of binge eating and other periods of not eating at all, and his weight has been up and down as well. His energy has been low, though static the past 1-2 years. His concentration has been poor, and he has struggled to even assemble a home exercise bike and follow instructions. He said he feels worthless often.

17. Mr Ralph also reported ongoing pervasive and impairing symptoms of Post Traumatic Stress Disorder despite this treatment. The Medical Assessor records on page 2 of the MAC:

"He said he has a lot of intrusive recollection of the accidents in 2012 and 2022, particularly when it comes up in the media. He said he has nightmares of the subject accidents in 2012 and 2022, which causes his distress. He tries to avoid thinking or talking about it and avoids external reminders such as media stories. He feels he cannot trust other people. He has a constant feeling of fear, shame, and guilt. He has a diminished interest in his previous activities, and he feels detached from friends and family, and has difficulties experiencing positive emotions. He has been more frequently angry and agitated, and he overreacts with his wife and children with yelling at them. He has been easily startled by any noise, in an exaggerated manner, and he has been more hypervigilant as he fears people coming into the house, making it harder to fall asleep."

18. Dr Chew took the following history of medication on 20 June 2024:

"His current medication includes Pristiq 100 mg and melatonin for sleep. He is in discussions with his psychiatrist about increasing the dose of Pristiq and I understand there have been discussions about other potential agents."

19. Dr Chew was of the opinion that Mr Ralph had not reached maximum medical improvement on the basis that there were "plans to optimise his medication".
20. Mr Ralph's statement of 16 August 2024 also contains many paragraphs ([86]-[98], in particular) detailing his symptom and associated impairment, concluding that he is "suffering severe anxiety and depression".
21. Based on the above, it is the Appeal Panel's view that the treatment undertaken by Mr Ralph does not constitute "effective long term treatment". Various methods have been trialled without great success. Dosages have been modified over time.
22. Further, even if there had been effective long term treatment satisfying step one, there is insufficient evidence that the treatment has resulted in substantial or total elimination of the original impairment. Based on the history given in Dr Bhandari's reports, as well as recorded in the MAC, Mr Ralph's symptomatology and the associated impairment has remained largely consistent for a period of time. If anything, over the period in 2024, his condition deteriorated. The whole person impairment score calculated in February 2024 by Dr Nagesh was 19%, and in the MAC the score calculated was 22%. There is no evidence of period of time where Mr Ralph was significantly more impaired, and it can hardly be said in those circumstances that there has been a substantial elimination of the original impairment.
23. As the criteria have not been met for an allowance in accordance with cl 1.32 of the Guidelines, the Medical Assessor has erred in including 2% whole person impairment. That aspect of the assessment will be revoked.
24. For these reasons, the Appeal Panel has determined that the MAC issued on 1 November 2024 should be revoked, and a new MAC should be issued.
25. The PIRS in ascending order is 2, 2, 2, 2, 3, 5. That is a median class of 2 and an aggregate of 16. This is converted to 9% whole person impairment. The allowance of 2% for the effects of treatment is revoked. There has been no challenged to the deduction of one tenth made by the Medical Assessor pursuant to s 323 of the 1998 Act and the Appeal Panel agree that it is appropriate. The final assessment is therefore 8% whole person impairment.
26. The new certificate is attached to this statement of reasons.

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Yu Tang Shen and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Chapter, page and paragraph number in NSW workers compensation guidelines

Chapter, page, paragraph, figure and table numbers in AMA 5 Guides

Proportion of permanent impairment due to pre-existing injury, abnormality or condition

Sub-total/s % WPI (after any deductions in column 6)

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