WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); psychological injury; appeal with respect to three tables of the psychiatric impairment rating scale (PIRS); Held - with respect to self-care and personal hygiene the history in the file showed that weight loss was intentional and not a result of the injury; no error with respect to assessment of travel and no error in not making a section 323 deduction; Cole v Wenaline Pty Ltd, and Vitaz v Westform (NSW) Pty Ltd; MAC revoked.

1. On 18 June 2025 Sydney Trains lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Ash Takyar, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 30 May 2025.
2. Sydney Trains relies on the ground of appeal under s 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) - that the MAC contains a demonstrable error.
3. The President's delegate was satisfied that, on the face of the application, the ground of appeal was made out in respect of the Medical Assessor's assessment of self care and personal hygiene. 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 Marshall was employed by Sydney Trains in track maintenance. He suffered a psychological injury as a result of events in his employment. In the Application to Resolve a Dispute, he pleaded that the injury was deemed to have occurred on 28 October 2024. Since the date of our original decision, Mr Marshall and Sydney Trains have filed consent orders in which they agreed that deemed date of injury was 4 January 2023.
2. The Medical Assessor assessed 22% whole person impairment using the Psychiatric Impairment Rating Scale (PIRS), placing Mr Marshall in class 2 for travel and social functioning, class 3 for selfcare and personal hygiene, social and recreational activities and concentration, persistence and pace and class 5 for employability. The Medical Assessor did not adjust the result for the effect of treatment and did not make a deduction under s 323 of the 1998 Act.

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 Marshall to undergo a further medical examination because there is sufficient information in the file to determine the appeal.

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. Both parties made written submissions. They are not repeated in full, but we have considered them.
2. In summary, Syndey Trains submitted that the Medical Assessor erred in assessing Mr Marshall in class 3 for self care and personal hygiene because he is capable of living alone.
3. Sydney Trains said that the Medical Assessor was in error to assess Mr Marshall in class 2 for travel because he is able to catch the XPT to Sydney and walk long distances into town. It said that Mr Marshall did "not meet the requirements" for assessment in class 2 because "familiar area" was qualified by the examples in the Guidelines so that familiar areas "must be those of the type cited". It said that assessment in class 2 was "glaringly improbable". Though its own expert, Dr Verma, had assessed Mr Marshall in class 2, Sydney Trains said that he may not have been apprised of Mr Marshall's regular independent travel to Sydney and that the Medical Assessor was not bound by the opinions of the doctors retained by the parties.
4. Sydney Trains also submitted that the Medical Assessor erred in not making a deduction under s 323 of the 1998 Act. It noted that the Medical Assessor recorded that Mr Marshall denied any previous history of mental illness and said that history was incorrect, the Medical Assessor being wrong to say that a condition diagnosed in 2017 had resolved over time and not relevant to contribution. Sydney Trains said that the Medical Assessor failed to explain how he concluded that the condition had resolved and that he was in error to conclude that the condition was an undiagnosed psychosis or post-psychotic depression. It said that the contemporaneous clinical notes showed that the condition was a response to life stressors. It submitted that the Medical Assessor was in error to decline to make a deduction when he "did not hold evidence to conclude that prior condition had resolved" and that he was wrong to focus on whether the condition continued to give rise to symptoms.
5. In reply, Mr Marshall submitted that Sydney Trains "failed to grasp the nature of the Medical Assessor's duties and jurisdiction" referring to Wingfoot Australia Partners Pty Ltd v Kocak.[1] Mr Marshall said that the Medical Assessor was required to form his own conclusions, applying his own expertise. He said Sydney Trains ignored the reference to regular support in the examples for class 3 of the PIRS and referred to the statement in Jenkins v Ambulance Service of New South Wales[2](Jenkins) that the activities set out in the PIRS are examples only. With respect to self care and personal hygiene, Mr Marshall said that he only cooked out of necessity.
6. Mr Marshall said that Sydney Trains' submissions placed its own, unwarranted gloss on the assessment of travel to familiar areas. Mr Marshall submitted that the Medical Assessor did not err in not making a deduction under s 323 and that Sydney Trains' submissions were not supported by a reading of the MAC as a whole. He said that the Medical Assessor formed his own conclusions on the medical question referred to him consistent with authority.

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[3] 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[4] 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 history of the onset of the injury and Mr Marshall's treatment. He described Mr Marshall's present symptoms. Describing Mr Marshall's daily routine, the Medical Assessor wrote:

"... 'today I am in a good spot - this is one of my good days, I am worse than this. This is a walk in the park day, how I am now, agitated, i am worse than this usually'. He reported that meals are not eaten at set times, adding, 'I'll be honest with you, I've been starving myself, be lucky to eat one meal a day'. His weight has dropped from over 200kg to 90kg now, with loss of appetite 'when I went on stress leave, six, nine months of just living in my room... like a hermit'. He used to eat 'big meals, but I don't eat it all, the urge doc, the urge has gone, I don't eat as much as I used to', with poor meal enjoyment. His main meal is dinner, eaten at 6-8pm, 'cos my nephew, he cooks late... they send a feed down to me'. Pre-injury, Mr Marshall cooked every night, now doing so 'very rarely, I'd be lucky to put noodles on. The most cooking I do is chicken chippies, I get a box of chicken chippies and pies and that... and I get nuts and that for the boys'. He reported trying to teach his children to cook. He finds it harder to cook due to his mental state, adding, 'I just sit still long enough, I can't really stand still, peel potatoes'. He reported then trying to shower, before he has a joint then tries to sleep - depending on how long he needs to fall asleep. ...

Before his injury, he ate three meals a day and two snacks, which is now limited to one smaller meal. He used to shower once a day before, now doing so variably, stating that he will not if he is not going anywhere - showering 'probably four, five' days a week due to depressive changes (amotivation, lack of energy, low mood). Mr Marshall shaved daily or second daily pre-injury, which has declined 'to once every two weeks... cos of laziness and the depression you don't want to do this or want to do that and then it makes you lazy and you think I am worthless what's the point, and no one wants you'. Earlier he noted, 'I used to doll myself up... now I don't even do that'.

Along with cooking, he grocery shopped twice a fortnight, now relying on his nephew and his wife or his sons, due to anxiety. With respect to the chores, he finds it harder to attend to them, but he gets his sons to attend to them due to depressive effects.

... he cooks for his mother out of necessity when she is hungry and rings him, noting that at such times, 'I get out of my depression and I think, 'This is mum', and I do it. it's a battle, being at mum's and cooking' '.

"In terms of transport, Mr Marshall said he does not have a licence, though he can walk 70-80km to town (which might take all day) or get lifts from relatives (which he usually does), or otherwise he is picked up by 'my white mates'. In terms of public transit, he said he only takes smaller (minibuses, possibly) that older persons prefer, as he feels safer on them. He avoids taking the train in Sydney, and if he takes the XPT train from Kempsey to Sydney, he locks himself in his cabin and said one of the staff knows him and she brings food to him and allows him to remain in his own cabin. When he has had to share a compartment, he has spoken to staff and they have moved him to an empty one, due to his anxiety. He said he can travel in this way to Sydney, which he is familiar with, and locally but not to places new to him."

1. Summarising the injuries and his diagnoses the Medical Assessor said:

"On assessment, he presents with degraded sleep (with middle and sleep insomnia, along with reduced hours), concentration and memory disruption (which was observed and described in terms of impacts), pervasive severe depressed mood and anhedonia, fatigue with napping, feelings of helplessness, worthlessness and hopelessness, and guilt ruminations, along with appetite reduction. Anxiety is ongoing and severe, with irritability, physiologic changes, muscle tension, restlessness and fatigue as noted.

These symptoms, on the basis of the history, Mr Marshall's mental state examination features, and the documentation as provided by both parties is consistent with diagnoses under DSM-5-TR of a major depressive disorder and generalised anxiety disorder. Dr Verma in his report diagnosed a major depressive disorder with anxious distress, as did Dr Kumagaya, but in my view, a standalone anxiety disorder diagnosis is warranted due to the severity and breadth of symptoms, and the impacts of the anxiety. I do not agree on the paranoid personality disorder diagnosis as there is not sufficient evidence of this longitudinally, including pre-injury. While Mr Marshall had suffered a brief cannabis-induced psychotic episode many years ago (aged 17, which he disclosed at this examination), he stopped cannabis use and took medication, later ceasing it without any evident recurrence of a psychotic illness; he did not present with psychotic symptoms on examination. It is noted that Dr Verma seemed to correlate this brief episode with a diagnosis of paranoid personality disorder, perhaps based on irritability (Dr Verma describes agitation after Mr Marshall had a disagreement with his uncle, presumably pre-examination but he said Mr Marshall calmed down then provided a history of the injury), which more likely than not emanates from anxiety (irritability stemming from his anxiety). Personality disorders are enduring, lifelong and diagnosis should be longitudinal, not based on a cross-sectional examination - the ability to accurately diagnose these questions at cross-sectional interview without a documented longstanding history in my view, very, very limited and fraught.

Thus, while there had been a brief psychotic episode, it resolved and noting that Mr Marshall had no pre-existing, active psychiatric illness such as depression or anxiety, no deduction from his impairment is reasonable. The Mental Health Care Plan from 2017 which refers to depression may have been referring to the undiagnosed psychosis at that time (if that was the case) or a post-psychotic depression - this is not known, but if present, it resolved over time and is not relevant in contribution at this present time."

1. The Medical Assessor contrasted his assessment with those of Dr Kumagaya, who saw Mr Marshall at the request of his solicitors, and Dr Verma, who saw him for Sydney Trains. With respect to self care and personal hygiene, the Medical Assessor said:

"In Self Care and Personal Hygiene, there is a clear argument in my view that functioning has reduced over time and now lies at a class 3 grade, as Mr Marshall is eating one meal a day (three previous to the injury) and showering four or five times a week, and he would need prompting to return these to or around the pre-injury level, owing to his depressive symptoms. He shaves a lot less often for the same reason. I note that Dr Verma's history here is very limited and general, as is Dr Kumagaya's."

1. With respect to travel, the Medical Assessor said:

"Travel, which I rated at class 2 is where I prefer Dr Verma's rating over that of Dr Kumagaya as Mr Marshall can walk a significant distance to town. He does not have a licence, so has to otherwise rely on being picked up, though he can independently take small busses which he said older persons tend to use, so he feels safer. He can use the XPT train and sits in his own carriage. He avoids trains in Sydney, likely to remind him of the work injury. Travel does not require a support person usually, rather is independent but limited at times to local and familiar areas, including Sydney."

1. The Medical Assessor referred in some detail to the medical evidence in the file. Commenting on Dr Verma's report, he said:

"A major depressive disorder with anxious distress was diagnosed, and Dr Verma noted, 'There is a history of past psychotic symptoms in the context of Cannabis use and his overall presentation suggests a degree of paranoia". At this assessment, Mr Marshall did discuss the previous history of a drug induced psychotic episode aged 17, with a two-week admission to hospital, though he was able to cease medication without any apparent recurrence, likely as he ceased cannabis. I disagree with his diagnosis of paranoid personality disorder, noting that personality disorders are lifelong and enduring, and the psychotic illness is a separate condition that resolved, occurring due to substance use."

1. The Medical Assessor was required to assess Mr Marshall as he presented on the day of the examination, using his own clinical judgement to form a diagnosis and assess WPI.[5]
2. Before we consider the impugned assessments, it is relevant to observe that the important part of the description of each class is the level of impairment - e.g. no deficit, mild impairment, moderate impairment.
3. 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".
4. Rather than providing criteria for assessment, what follows the description of the level of impairment in each class are some examples of limitations on activities which are consistent with the level of impairment. Paragraph 11.12 of the Guidelines reads:

"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."

"None of the specific examples reflect age differences. None of the specific examples necessarily reflect gender differences or cultural norms. On the contrary, the examples are generic and general in their description. They are not particularly specific. For example, in Class 2 in Table 11.1 of the PIRS, one example which is given is that the person may look unkempt occasionally. One can readily imagine that looking unkempt would be a matter which would vary where one was considering the activities and behaviour of a person in their late teenage years when compared with a person who was much older. What is unkempt in those circumstances would, itself, vary.

Equally, the boundaries between the classes are not of themselves bright line boundaries.

In my opinion, it is to misread the WorkCover Guides to require, as the plaintiff's submissions would, that the AMS can only proceed either by using the examples in the tables solely as the basis for a rating, or as the minimum basis for a rating.

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 Tasevski v Westpac Banking Corporation,[7] (Tasevski) Schmidt AJ said:

"There are many things in life, medicine and the law which reasonably permit of more than one answer. Assessment of the degree of a person's impairment is one of them. Inevitably, in a case where it is the impairment of a human being as the result of a psychological injury which is being assessed, consideration must be given to matters of degree and impression, about which reasonable minds may differ.

But that is what this statutory scheme seeks to regulate by its adoption of the applicable Guidelines. They require conclusions to be reached about the severity of an impairment by a determination of which scale particular conduct relates to and the resulting class assignment of that scale, by reference only to that conduct, considered in light of the person's cultural background, age, sex and cultural norms. ...

By confining the assessment of the six scales to the totality of the conduct relevant to each scale, an overall conclusion is arrived at about the injured person's whole person impairment, as the result of the psychological injury suffered. That is a result not left to an assessor's discretion. It must be undertaken in accordance with all of the applicable statutory requirements.

Class assignment of one scale thus does not permit account to be taken of conduct relevant to another scale, because, as explained in Ballas, scale assignment of conduct can only have one conclusion. The statutory scheme thus requires an assessor to reach a conclusion about the correct class assignment for that scale, by considering the relevant conduct in light of the class description, which is given by way of example.

When the Guidelines require the assessor to assign particular conduct to the relevant scale and then assign each scale to one of the statutory classes, the assessor undoubtedly has to exercise a degree of clinical judgment: Ballas at [93]. That is what gives rise to the possibility that reasonable minds may differ. But still the exercise which the assessor has to undertake in arriving at a conclusion about the correct class is confined by the considerations which the Guidelines require. Assignment of conduct to the relevant class is not left to be determined as a matter of discretion."

1. The Medical Assessor is directed by the standard MAP template to comment on other opinions and provide the reasons why his or her opinion differs. That is so the parties understand how and why a different result was reached, not because the Medical Assessor is required to agree with or choose between the previous assessments. The fact that another assessor made a different observation on a different day should not influence the Medical Assessor's opinion. In Tradieh v LM Hayter & Sons Pty Limited,[8] Stern JA said that the medical dispute between the parties was not a dispute between the assessments made by their independent medical examiners. Her Honour said:[9]

"Ultimately, as is clear from Wingfoot v Kocak and IAG v Keen, both of which arose in the context of (for this purpose) relevantly analogous legislative schemes, [the Medical Assessor] was required to make an assessment of the factual or evaluative question referred under s 319(c) of the 1998 Act, being the degree of the plaintiff's permanent impairment as a result of the Injuries. Notwithstanding that s 321 of the 1998 Act provides for a medical dispute to be referred for assessment, the role of the medical assessor is not to adjudicate between or to resolve the competing positions of the parties. A medical assessor must plainly consider the material before him or her, and that material will likely include expert assessments of WPI relied upon by a claimant and an employer where the dispute is as to the degree of the claimant's WPI, but no higher level of 'engagement' is required under the 1998 Act."

1. We are required to determine if the Medical Assessor applied incorrect criteria or made a demonstrable error. Our task is not to determine whether the categorisation under the PIRS was "glaringly improbable" or "open" to the Medical Assessor - see Chalkias v New South Wales[10] and Masters v Healthshare New South Wales.[11]

1. The Medical Assessor assessed Mr Marshall in class 3. Sydney Trains said he should have been assessed in class 2, as Dr Kumagaya and Dr Verma did.
2. Taken at face value, the history that the Medical Assessor obtained solely from Mr Marshall may support assessment in class 3. The deficits in Mr Marshall's personal care are relevant. He is often provided with food by his nephew (although he reports being able to prepare meals for others which, even if done "out of necessity", indicates the capacity to prepare meals for himself too). Family members assist with shopping. Contrary to Sydney Trains' submissions, he does not live alone, as his sons aged 17 and 15 live with him.
3. However, the notes from his general practitioner, Dr Senior at the Tharawal Aboriginal Corporation (Tharawal) show that Mr Marshall made a determined effort to lose weight and sought help extensively to do so.
4. Mr Marshall has consulted the same health service since 2017. Documents in the file show that it is based in Airds in south western Sydney. On 29 June 2017 Dr Bernard recorded that Mr Marshall had started overeating after a relationship breakup and was concerned about his weight when a relative was diagnosed with renal damage. Mr Marshall asked for a prescription for Duromine. Dr Bernard explained that he needed to change his lifestyle. His weight was recorded as 103 kg.
5. Mr Marshall's self-report of his weight changes do not match the clinical reality. Mr Marshall weighed 129.45kg in February 2020, soon after starting at Sydney Trains, and in October 2020, reported to the doctor he had lost 20kg through 'exercising regularly doing cardio workouts' and using Duromine for one month. However at that time he weighed exactly the same - 129.05kg.
6. Mr Marshall spoke to Dr Liu about gastric banding on 5 November 2021 when he weighed 143kg. He told Dr Senior he wanted to lose weight on 24 March 2022, seeking weight loss drugs, and was prescribed Ozempic. It was only several months later in late 2022 that any psychiatric injury symptoms became manifest.
7. However on 10 January 2023 Dr Senior noted that Mr Marshall had managed to lose some weight, having "got up over 150 kg". On 25 July 2023 Dr Senior noted Mr Marshall's weight at 120.95 kg and recorded:

Has been trying to lose weight, been doing more exercise, eating healthily, but no trying so hard that I'd expect this much weight loss... Do bloods looking for cause and diabetes control."

1. Dr Senior noted further weight loss on 19 September 2023 when Mr Marshall weighed 111.7 kg. His weight continued to reduce gradually and on 14 November Dr Senior recorded that Mr Marshall's weight loss continued "is watching what he eats and walking every day." On 12 December 2023 Dr Senior wrote that Mr Marshall continued to be happy about weight loss and "eats about 1 meal per day, but this can be quite a lot." On 2 March 2024 Dr Senior noted that Mr Marshall was "having shakes and eating less than he used to." Dr Senior again requested blood tests. On 9 April 2024 Dr Senior recorded that Mr Marshall's weight had stabilised.
2. These notes show that the main reason Mr Marshall "misses" meals is that he has deliberately cut down on his food intake over several years to lose weight and improve his health. He began to take steps to lose weight before the deemed date of injury and continued to do so for several years after his psychiatric condition emerged, showing a determined and consistent level of healthy self care including diet and exercise, managing his diabetes, and of his own volition without the level of support that a moderate impairment requires. He has sustained that healthy weight loss. When that medical evidence is balanced with the deficits in personal care elicited in the assessment, the correct assessment is in class 2.

1. Sydney Trains argued that Mr Marshall should have been assessed in class 1 for travel, essentially because he is able to catch the train to Sydney on occasion.
2. The Medical Assessor assessed Mr Marshall as having a mild impairment. The Medical Assessor relied on Mr Marshall's ability to walk long distances to town, noting that he is often given a lift by friends or relatives. He takes smaller minibuses where he feels safer. He can travel by train to Sydney, where he was based at the time of the injury though does so with the help of a staff member who assists him to remain in his own cabin. He does not travel by train within Sydney. That description shows that Mr Marshall does not feel comfortable to use public transport generally.
3. It is noteworthy that the Medical Assessor took a far more detailed factual history than either Dr Kumagaya or Dr Verma. Each of those doctors set out their assessments in the PIRS table essentially as an ipse dixit by using the examples in the PIRS, without further expansion, in contrast to the Medical Assessor who set out the specific facts on which he based his decision to assess Mr Marshall in the relevant class.
4. As observed above, the activities in the PIRS are no more than examples which might be relevant to illustrate the relevant level of impairment. Sydney Trains attempt to construe the examples in the PIRS by arguing that familiar areas must be local is inconsistent with the Guidelines and with the statements in Jenkins and Tasevski. The Medical Assessor showed he was alert to operation of the Guidelines when he said that Mr Marshall can travel to places "which he is familiar with, and locally but not to places new to him."
5. Sydney Trains said that the Medical Assessor did not explain what Mr Marshall did on his trips to Sydney. One clear example from the file was the examination by Dr Verma in November 2024. Dr Verma noted Mr Marshall's agitation at the examination, having had a disagreement with his uncle who was meant to be accompanying him to the appointment, evidencing that, at least on this occasion, he had a support person with him when attending appointments in Sydney.
6. The Medical Assessor's assessment in class 2 does not disclose error.

1. The Medical Assessor is tasked with determining the degree of WPI by undertaking an examination and preparing a report, based on his observations on the day of the examination and using his own clinical judgement. The Medical Assessor is an administrative decision maker and the correct approach to review of his decision is described in the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang[12] where the High Court approved the statement of principle in a decision of the full Federal Court:

"... a court should not be concerned with looseness in the language nor with unhappy phrasing of the reasons of an administrative decision-maker. ... the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error."

1. That statement is relevant to the consideration of Sydney Trains' submissions with respect to s 323 because those submissions turn on nuances of language.
2. Sydney Trains noted Mr Marshall's experience of treatment in a psychiatric unit aged 17 for auditory hallucinations but eschewed reliance on it in respect of s 323. Sydney Trains did rely on the Medical Assessor's statement that Mr Marshall denied previous relevant conditions or treatment and his statement that because Mr Marshall had "no pre-existing, active psychiatric illness such as depression or anxiety, no deduction from his impairment is reasonable". Sydney Trains argued that there was evidence of Mr Marshall suffering depression in 2017 before he commenced employment and that the Medical Assessor had not explained how he concluded that the poor depression had resolved. It said that the "logical inference" from the Medical Assessor's reasons was that he "viewed the symptomatic effects of the pre-existing condition as informing the question of whether a deduction was required." Sydney Trains argued that the presence of symptoms was not determinative, referring to Vitaz v Westform (NSW) Pty Ltd[13] (Vitaz) and said that the extent to which the Guidelines required focus on symptoms and functional effects on the PIRS had been held to be invalid, referring to Marks v Secretary, Department of Communities and Justice (No 2).[14]
3. Sydney Trains said that the Medical Assessor "did not hold evidence" that the prior condition had resolved so that a deduction of one-tenth was required.
4. Sydney Trains' submissions do not take account of the principle in Cole v Wenaline Pty Ltd[15] in the context in which it was decided. By a majority, an Appeal Panel determined that s 323 mandated a deduction because a worker had undergone lumbar spine surgery in 1976. After recovering from the first injury, Mr Cole had no impact on his activities of daily living and no radiculopathy. The medical members of the Panel proceeded on the assumption that the fact of the first injury, irrespective of outcome, must have contributed to the impairment. In that context, Schmidt J said:

"Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, 'irrespective of outcome', contribute to the impairment flowing from any subsequent injury. The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in s 323(2), where the required deduction 'will be difficult or costly to determine (because, for example, of the absence of medical evidence)'. In that case, an assumption is provided for, namely that the deduction 'is 10% of the impairment'. Even then, that assumption is displaced, if it is at odds with the available evidence."[16]

"Section 323 requires that a conclusion be reached as to whether or not any proportion of permanent impairment assessed resulted from an earlier injury, pre-existing condition or abnormality. In a case such as this, that conclusion must be reached on the evidence led as to the actual consequences of the earlier and later injuries, unless the assumption provided in s 323(2) applies."[17]

1. In Vitaz, Basten JA rejected the contention that if a worker did not suffer symptoms from a pre-existing condition and there was no rateable impairment before an injury, there would be no deduction under s 323. His Honour said:

"That opinion contained a legal assumption which is inconsistent with the approach adopted by this Court in, for example, D'Aleo v Ambulance Service of New South Wales (NSWCA, 12 December 1996, unrep) (quoted by Giles JA, Mason P and Powell JA agreeing, in Matthew Hall Pty Ltd v Smart [2000] NSWCA 284; 21 NSWCCR 34 at [30]-[32] and, more recently, by Schmidt J in Cole v Wenaline Pty Ltd [2010] NSWSC 78 at [13]). The resulting principle is that if a pre-existing condition is a contributing factor causing permanent impairment, a deduction is required even though the pre-existing condition had been asymptomatic prior to the injury. In the absence of any medical evidence establishing a contest as to whether the pre-existing condition did contribute to the level of impairment, the complaint about a failure to give reasons must fail. An approved medical specialist is entitled to reach conclusions, no doubt partly on an intuitive basis, and no reasons are required in circumstances where the alternative conclusion is not presented by the evidence and is not shown to be necessarily available."[18]

1. The important words from that passage are "contributing factor causing permanent impairment." Vitaz was concerned the impact of asymptomatic degenerative change on impairment resulting from a spinal injury.
2. Section 323 does not require a deduction unless the pre-existing condition is a contributing factor to the permanent impairment. The submission that the Medical Assessor did not "hold evidence" that any previous condition had resolved was not apt when the Medical Assessor was required to use his expertise and clinical judgement in reaching his own conclusion. The MAC shows that the Medical Assessor did consider the relevant material.
3. Dr Verma made a deduction of one-tenth from his assessment. He said:

"I noted the report by Dr David Kumagaya dated 18th October 2024. Dr Kumagaya noted that he had been prescribed fluoxetine and Temazepam. To Dr Kumagaya, Mr Marshall denied any pre-existing psychiatric background. This was different to what he told me. Dr Kumagaya noted that there was no history of illicit substance use whereas Mr Marshall told me that at age 17 he developed auditory hallucinations in the context of Cannabis use and needed to be hospitalised for two weeks. Dr Kumagaya diagnosed major depressive disorder with anxious distress. Dr Kumagaya noted that on mental state examination there was no psychomotor disturbance or abnormal movements, and opined that he had depressive and anxious cognitions. Dr Kumagaya assessed him as having 22% whole person impairment.

I noted the IMC report by Dr Sekel dated 21st February 2024 which stated that he had worked with a psychologist in the past in Kempsey. This would be consistent with the history of auditory hallucinations in the context of Cannabis use at age 17. Dr Sekel commented that the medical records from 12th December 2023 stated he was hoping to return to work in 2024 with new team or at new location. Dr Sekel noted that when Mr Marshall first attended Dr Senior 13 months prior he mentioned that he had already been attending a psychologist for pre-existing psychological problems.

In summary he appears to have a past psychiatric history which was not reported to Dr Kumagaya."

1. Dr Verma made the deduction because of the treatment Mr Marshall underwent at the age of 17, not because of the treatment in 2017 on which Sydney Trains relied.
2. Dr Verma referred to Dr Sekel's report. Dr Sekel, whose report is dated 21 February, undertook an injury management consultation based on a file review and discussion with Dr Senior. Dr Verma's summary suggests that Dr Sekel's report confirmed that Mr Marshall was under treatment at the time of onset of the injury. That is not what Dr Sekel said. This report reads:

"Neither the insurer nor Dr Senior can detect any evidence that Mr Marshall has ever attended a psychologist since the onset of his current complaint 13 months ago. When Mr Marshall first attended Dr Senior 13 months ago, he mentioned that he had already been attending a psychologist for pre-existing psychological problems, but Dr Senior does not know the name, where any such counselling had occurred, or any other details. It is possible that he attended counselling at the local Aboriginal Medical Service."

1. The notes from Tharawal show that Mr Marshall was a new patient in June 2017 and that he had moved to the area to care for his nephew who had end-stage renal failure. He was depressed because of his nephew's condition and a recent relationship break up. On the same day he was referred to Ms Harper, a psychologist at Tharawal, whom he had previously seen after the death of his father and for alcohol and other drug counselling. On 20 July 2017 Ms Harper wrote:

"Reported that he is doing well, and that he continues to be keen to change many aspects of his life. Stated that he is pleased with his progress and is confident that he can continue, to get fit, have employment, provide a good living environment for his children, and be peaceful spiritually.

Explored some aspects of his grief around his father, and is keen for this psychological assistance to continue."

1. Ms Harper's notes for 3 August 2017 and 17 August 2017 show a significant improvement in Mr Marshall's condition and that he was "well and increasingly confident in his abilities to stay well." She "discussed and extended strategies to keep him motivated and well." The next contact with Tharawal was on 27 June 2019.
2. Dr Liu treated Mr Marshall at Tharawal before Dr Senior took over his care. He completed a health check report on 9 November 2021. Dr Liu noted that Mr Marshall had a past history of depression, worsened because of his obesity and thinking about his weight.
3. There is no further reference to psychological symptoms until Mr Marshall saw Dr Senior with a history of the injury on 10 January 2023, although there are numerous references to him seeking to improve his physical health and many examples of good self-care.
4. Dr Verma's deduction under s 323 is based on an inaccurate interpretation of Mr Marshall's records. There is no evidence that he was under active treatment at the time he commenced employment with Sydney Trains. The Medical Assessor's assessment that any past condition was not relevantly contributing to Mr Marshall's condition was correct.

1. For these reasons, we have determined that the MAC issued on 30 May 2025 should be revoked, and a new MAC should be issued.
2. The assessments are therefore class 2 for self care and personal hygiene, class 3 for social and recreational activities, class 2 for travel and social functioning, class 3 for concentration, persistence and pace and class 5 for employability.
3. When those scores are arranged as required by paragraph 11.14 of the Guidelines, they are 2, 2, 2, 3, 3 and 3. The median score is 3 and the aggregate is 17. Under Table 11.7, that converts to 19% WPI.
4. No deduction under s 323 is warranted.
5. 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 Ash Takyar 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)

[1] [2013] HCA 43 at [47].

[2] [2015] NSWSC 633.

[3] [2006] NSWCA 284.

[4] [2021] NSWCA 304 at [26].

[7] [2024] NSWSC 401 at [27]- [31].

[8] [2025] NSWSC 840.

[10] [2018] NSWSC 1561.

[11] [2025] NSWSC 821.

[12] [1996] HCA 6, 185 CLR 259, 272.

[13] [2011] NSWCA 254.

[14] [2021] NSWSC 616.

[15] [2010] NSWSC 78.