1. On 22 April 2025 Craig Tonks (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor(the Application). The medical dispute was assessed by Dr Ankar Gupta, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 24 March 2025.
2. The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
   • the assessment was made on the basis of incorrect criteria, and
   • the MAC contains a demonstrable error.
3. The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
4. Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
5. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).

1. The appellant suffered an injury on 10 September 2019 in his employment as a Senior Constable with the State of New South Wales (NSW Police Force) (the respondent).
2. The appellant lodged an Application to Resolve a Dispute in the Personal Injury Commission (Commission) dated 20 January 2025 in which he claimed lump sum compensation in respect of the psychiatric injury.
3. The matter was referred to Dr Ankar Gupta, Medical Assessor, for assessment of whole person impairment (WPI) in respect of a psychological/psychiatric injury on 10 September 2019.
4. The Medical Assessor examined the appellant on 10 March 2025 and assessed 6% WP) in respect of a psychiatric condition as a result of the injury on 10 September 2019.

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 there was sufficient evidence on which to make a determination.

1. Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
2. Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes requires as follows at paragraph 18:

"If a party seeks to rely on additional relevant information as a ground of appeal (s 327(3)(b) of the 1998 Act) or give fresh evidence, additional evidence or substituted evidence on appeal (s 328 of the 1998 Act) they must provide: (c) submissions as to why the evidence is additional relevant information/fresh evidence, and (d) submissions as to why the evidence was not available to and would not reasonably have been obtained by the party before the medical assessment appealed against."

1. The appellant seeks to admit the following evidence:

(a) report of Dr Tanya Hollier dated 16 April 2025.

1. The Appeal Panel notes that the appellant has not relied on additional relevant information as a ground of appeal (s 327(3)(b) of the 1998 Act) but is seeking to give fresh evidence, additional evidence or substituted evidence on appeal.
2. The appellant made no submissions as to why this evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
3. The appellant merely submits that his psychologist, Dr Tanya Hollier, has reviewed the MAC of Dr Gupta dated 24 March 2025 and provided a report reviewing the MAC.
4. The respondent objects to the admission of the report of Dr Hollier dated 16 April 2025 and submits that the appellant is attempting to introduce additional relevant information that was not before the Medical Assessor at the time of his assessment. The respondent submits that the criteria in s 327(3)(b) have not been met, such that the appellant can rely on Dr Hollier's report in any event.
5. The admission of 'fresh evidence' into an appeal was considered by Deputy President Fleming in Ross v Zurich Workers Compensation Insurance [2002] NSWWCC PD7 (Ross). The principles set out in Ross are relevant and have been applied to the admission of fresh evidence by an Appeal Panel.
6. In Ross the Deputy President stated:

"A number of authorities have considered the tests at common law for the introduction of fresh evidence in appellate proceedings before the Courts. The relevant tests are firstly, that the evidence which is sought to be admitted on appeal was not available to the Appellant at the time of the original proceedings or could not have been discovered at that time with reasonable diligence, and secondly that the evidence is of such probative value that it is reasonably clear that it would change the outcome of the case (Wollongong Corporation v Cowan [1955] HCA 16; (1955) 93 CLR 435; McCann v Parsons [1954] HCA 70; (1954) 93 CLR 418; Orr v Holmes [1948] HCA 16; (1948) 76 CLR 632). These tests are addressed to the underlying principle of the need for finality in litigation and the importance of the ability of the successful party to rely on the outcome of the litigation. They are also addressed to the fundamental demands of fairness and justice in the instant case."

1. It has been established that evidence should not be admitted by a Medical Appeal Panel unless it is of "substantive prima facie probative value". In Lukacevic v Coates Hire Operation Pty Ltd [2011] NSWCA 112 at [78] Hodgson JA said:

"...in my opinion it would be reasonable for an AP not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act."

1. In her report, Dr Hollier refers to alleged "errors" and "inconsistencies" in the MAC by comparing the history recorded by the Medical Assessor to her own clinical history. She also references a "PTSD checklist" that she completed under DSM 5 and the results that she obtained. The Appeal Panel considers that any evidence contained in Dr Hollier's report that is not an "error "or "inconsistency" could have reasonably been obtained by the appellant before proceedings were commenced and certainly before the medical assessment was conducted. The Appeal Panel note that the evidence before the Medical Assessor did contain reports from Dr Hollier, none of which contain the information now provided, and which could have been obtained by the appellant before the medical assessment was conducted.
2. The Appeal Panel regards the "additional information" filed with the Application, that is, the report from Dr Hollier, does no more than cavil with history recorded by the Medical Assessor and seeks to challenge the history taken by the Medical Assessor during the assessment and the assessment made in the MAC. The Appeal Panel considers that the admission of such a report, which, in effect, cavils with the examination findings made by the Medical Assessor, would undermine the need for finality in litigation.
3. The Appeal Panel is not persuaded that the report of Dr Hollier contains any "additional relevant information" as required by s 327(3)(b) of the 1998 Act as it is not "information of a medical kind or which was directly related to the decision required to be made by the AMS".
4. Further, the appellant has failed to comply with Procedural Direction PIC7, failed to provide any submissions addressing the requirements of s 18 (c) and (d) in respect of the report of Dr Hollier and failed to comply with s 328(3) of the 1998 Act.
5. The Appeal Panel determines that the evidence, namely, the report of Dr Hollier dated 16 April 2025, should not be received on the appeal for the reasons given above.

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. The appellant's submissions include the following:

(a) Ground 1 - the Medical Assessor erred in his assessment by placing the appellant in class 2 for self care and personal hygiene. The appellant submits that he ought to be assessed under class 3 and that the Medical Assessor erred in the assessment.

(b) The Medical Assessor incorrectly applied the Guidelines. Clause 11.12 of the Guidelines states:

"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."

(c) In Table 11.2: Psychiatric Impairment Rating Scale (PIRS) the self care and personal hygiene descriptors are examples, and they ought not to be a strict guideline but provide guidance when determining the level of impairment for workers who are assessed by way of PIRS.

(d) The appellant's treating psychologist, Dr Tanya Hollier, has reviewed the MAC dated 24 March 2025 and provided the following:

"I note that Mr. Tonks has reported that the MAC was completed in 30 minutes which has not been recorded in the preamble of the report.

Mr. Tonks engages in fortnightly appointments with Dr Tanya Hollier (Clinical and Health Psychologist). He is engaging in Trauma Focussed Cognitive Behaviour Therapy (TF-CBT) which has included the following interventions: Individual Psychoeducation for PTSD and Major Depressive Disorder, Breathing techniques, grounding techniques, mindfulness, TIPP (temperature, intense exercise, PMR etc), behavioural activation and exposure therapy (in vivo, imaginal, in situ and prolonged. This is not psychotherapy. Psychotherapy is a generalised term and is not specific to Trauma Focussed therapy for First Responders as required by the Expert Guidelines: Diagnosis and treatment of post-traumatic stress disorder in emergency service workers.

Within the body of Dr. Gupta's report there no direct reference to the level of symptomatology. A recently completed PTSD checklist DSM-V indicated moderate descriptor scores of reexperiencing symptoms (raw score 12/20), negative alterations (raw score (16/28) and hyperarousal (raw score 12/24), and a severe score on avoidance (raw score 6/8).

The Depression, Anxiety and Stress Scale-21(DASS-21) indicated severe total distress, severe anxiety, moderate depression and mild stress. In regards to daily functioning the World Health Organisation Disability Assessment Schedule 2.0 - Interview determines that Mr. Tonks' symptoms are transferring to levels of functional impairment across the following domains of functioning/disability:

It is noted in Dr. Gupta's report that Mr. Tonks is able to prepare dinner several times per week. I must point out that there is considerable inconsistency in how often Mr. Tonks is able to achieve this outcome and what is narrated in Dr. Gupta's report.

It fluctuates considerably and his ability to prepare a meal is very basic and only requires a few steps. Currently his cognitive capacity to engage in planning, sequencing, focusing and retaining information in short-term memory remains very limited.

His meal repertoire is spaghetti bolognaise and one other chicken dish.

Mr. Tonks is overweight and will often eat lower quality foods as a consequence of his level of functioning.

There is also reference in the report to being able to sit in front of the television and watch a show. Unfortunately, if you ask Mr. Tonks what he has watched in the episode of the TV show he will be unable to recall/recount the details to you.

He also finds himself sitting in front of a blank screen (e.g. the TV is not switched on) and he is unable to tell you how long he has been sitting there for.

Similarly he is not able to read for long periods of time. At best Mr. Tonks can read one page of a book and often cannot recall what he has read. He often has to re-read it again or put the book down and come back to it on another day.

Mr. Tonks has disclosed that some of the information contained in this report has been misinterpreted by Dr. Gupta or taken out of context. This is an example of this. I note that this is of no malice, but simply another example of the communication difficulties of someone with PTSD and MDD.

Mr. Tonks has described himself as 'calm' and can present as atypical to many other First Responders. He does present as hyper-aroused at times, but he can also present as hypoaroused under times of stress. I note that this is often easy to miss with Mr. Tonks if not in regular clinical contact with him. This is highly evident in his WHODAS scores and physical presentation. This can confuse his clinical presentation and suggest that he is functioning better than he is.

Section 7 Diagnosis(es) Inadequate information provided as to why Major Depressive Disorder was not included. Section 9 Did not include Dr. Tanya Hollier's clinical documentation (main treating clinician and also original diagnostician). My clinical opinion is that the errors in the above mentioned report and inconsistent information contained in the report provided by

Dr. Gupta dated 24 March 2025 discussed above have contributed to an inaccurate PIRS and subsequent rating of disability of Mr Tonks. Moreover, this has inadvertently provided an inappropriate rating of Mr Tonk's current level of functioning (see above completed measures with others available that have been completed at regular intervals throughout his treatment by Dr Tanya Hollier)."

(e) In conclusion, the appellant appeals the psychiatric impairment rating under the on the basis of incorrect criteria and a demonstrable error. Specifically, the appellant argues that the Medical Assessor erred in the assessment of the self care and hygiene, social functioning, concentration, persistence and pace and employability. The Medical Assessor incorrectly applied the Guidelines and that the examples provided in PIRS for social functioning, employability, concentration, persistence and pace and self care and personal hygiene. The appellant seeks a correction to the impairment rating to reflect a classification of moderate impairment under class 3 for the stated categories.

1. The respondent's submissions include the following:

(a) assessing permanent impairment involves clinical assessment of the claimant as they present on that day of assessment, taking into account the relevant medical history and available relevant medical information (paragraph 1.6 a. of the Guidelines). Medical Assessors are required to exercise their clinical judgement in determining a diagnosis when assessing permanent impairment and making deductions for pre-existing injuries/conditions (paragraph 1.6 b. of the Guidelines).

(b) Over the years, there have been many decisions dealing with assessment of permanent impairment in respect of psychiatric injuries and the application of the PIRS categories.

(c) In Ferguson v State of New South Wales & Ors [2017] NSWSC 887 (Ferguson) Campbell J dealt with the situation where the Medial Appeal Panel had revoked the MAC on the basis the findings by the Approved Medical Specialist were "glaringly improbably". At [23]-[25], Campbell J said:

"By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS: ... the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face".

The Appeal Panel accepted that intervention was only justified:

"...if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense."

(d) In Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633 Garling J said at [73]:

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

(e) Ground 1 - self care and personal hygiene - based on the history recorded by the Medical Assessor at page 3 and the PIRS assessment at page 8 of the MAC, the Medical Assessor correctly assessed the appellant as class 2 in respect of self-care and personal hygiene.

(f) Ground 2 - social functioning - based on the history recorded by the Medical Assessor at page 3 and the PIRS assessment at page 8 of the MAC, the Medical Assessor correctly assessed the appellant as class 1 in respect of social functioning.

(g) Ground 3 - concentration, persistence and pace - based on the history recorded by Dr Gupta at page 3 and the PIRS assessment at pages 8 and 9 of the MAC, the Medical Assessor correctly assessed the appellant as Class 2 in respect of concentration, persistence and pace and that he was entitled to do so based on his clinical findings and observations on the day of the examination.

(h) Ground 4 - employability - based on the history recorded by Dr Gupta at page 3 and the PIRS assessment at pages 9 of the MAC, the respondent submits the doctor correctly assessed the appellant as class 4 for employability.

(i) The respondent observes that the Medical Assessor's assessments in relation to self-care and personal hygiene, concentration, persistence and pace and employability were identical to the assessments provided by Dr Berry for the same PIRS categories.

(j) It is not necessary for the Medical Assessor to be satisfied of every nuance of categorisation in a class, in order to assess a worker in a particular class. In NSW Police Force v Wark M1-005236/12 (Wark) the MAP, relying upon (Marina Pitsonis v Registrar Workers Compensation Commission & Anor [2008] NSWCA 88 at [47]) Pitsonis, said at [32]:

"The question of the classification under the PIRS scale is very much for the AMS after a balancing of all of the information before him. There can be some grey areas in which other minds might ascribe a higher or lower rating, but unless a glaringly improbable categorisation has been made, or it can be demonstrated that the AMS was unaware of significant factual matters, the assessment is very much a matter for him/her based upon clinical experience and the assessment of all of the material before him."

(k) The respondent submits that the Application discloses no 'error' which can be demonstrated on the face of the MAC. Rather the Application relies on the appellant's assertion the Medical Assessor failed to record or failed to record correctly matters the appellant reported to the Medical Assessor in the assessment or adequately consider the matters reported by him.

(l) Such submissions were dealt with by the Court in Pitsonis at [59]:

"Those dependent on the applicant showing that the doctor failed to record or to record correctly things she had told him face a double difficulty. They are not demonstrable on the face of the Certificate. And they seek, in effect to cavil at matters of clinical judgment in that matters unrecorded are likely to be matters on which the specialist placed no weight. The same can be said about factual matters recorded in one part of the Certificate that did not translate into the decision favourable to the applicant now contended for."

(m) For the reasons above, the history recorded by the Medical Assessor in the MAC was consistent with his assessments of class 2 for self-care and personal hygiene and for concentration, persistence and pace, class 1 for social functioning and class 4 for employability. Therefore, there is no demonstrable error in respect of the Medical Assessor's assessment of the appellant in respect of the disputed PIRS categories.

1. The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
2. In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.

1. The appellant submits the Medical Assessor erred in his assessment and incorrectly applied Chapter 11 of the Guidelines in relation to "self-care and personal hygiene" and that category should be assessed as moderate (class 3).
2. The examples under Table 11.1 for "Self care and personal hygiene" in the Guidelines are:

"Class 2 Mild impairment: Able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.

Class 3 Moderate impairment: Can't live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2-3 times per week to ensure minimum level of hygiene and nutrition".

1. The Medical Assessor assessed the appellant as class 2 for self care and personal hygiene. In the PIRS Rating Form, the Medical Assessor wrote:

As described in the main body of the report, there is mild impairment. He does not look after his hygiene as well as he used to but does engage in household

chores, including cooking. He is mindful of his diet and has been losing weight by drinking a specially formulated shake."

1. Under "Present symptoms" the Medical Assessor noted that "his appetite is fine".
2. Under "Social activities/ADL" the Medical Assessor wrote:

"Mr Tonks says that he can go a couple of days without showering. He has not had a haircut since he left his job. He says that he cleans his teeth when he has a shower. He denies suffering any dental condition despite that. He says that he tries to clean and vacuum around the house. He also tries to keep stuff prepped for dinner unless he forgets. He eats consciously to manage his diabetes and stress levels. He says he tries to keep his diet 'pretty good' and cooks a couple of nights per week. He says that he is drinking a shake 'happy Mammouth' for his gut health, which has helped him lose six kilos in the last three weeks."

1. In his statement dated 30 October 2023, the appellant stated at 16(o): "I struggle to get on top of my personal hygiene, such as bathing, attending to my hair and grooming."
2. Dr Abhishek Nagesh, consultant psychiatrist, in a report dated 8 November 2023, 17 months prior to the MAC assessed a class 3 for self care and personal hygiene providing the following reasons:

"I have assessed him as class 3, moderate impairment. My rationale is the claimant struggles to cook, clean, and shop. He has a shower once or twice a week and he requires prompting from his wife. In my opinion, the claimant cannot live independently without the support of his wife. Hence, class 3 moderate impairment."

1. Dr Timothy Berry, consultant psychiatrist, in a report dated 10 April 2024 assessed a class 2 for self care and personal hygiene providing the following reasons:

"Self-care is not optimal and he looked unkempt during the assessment. He is able to undertake some household chores and attend the shops. I believe he could live independently if required".

1. The appellant submits that the evidence supports an assessment of class 3 for self-care and personal hygiene.
2. The Appeal Panel considers that one of the key differences in the descriptors between a class 2 and a class 3 impairment is the ability to live independently without support. In our view, the evidence including Medical Assessor's report that although the appellant's personal hygiene is not as good as it used to be, the appellant can engage in household chores and he can prepare and cook his own meals indicative that the appellant can live independently if required, and does not meet a key descriptor for class 3 of "does not prepare own meals". The Appeal Panel also note a level of self-care in managing his diet and weight reduction for his health that is incompatible with class 3 descriptors e.g. frequent visits to ensure a minimum level of nutrition.
3. The Appeal Panel considers that the Medical Assessor addressed the evidence adequately. Dr Nagesh assessed class 3 for self care and personal hygiene but, about six months later, Dr Berry, assessed class 2 for self care and personal hygiene. Dr Berry also noted that there had been some mild improvement in symptoms over the past 12 months. The Appeal Panel is satisfied that the reasoning process for assessing the appellant as class 2 for self care and personal hygiene is sufficiently clear, is able to be made out and cannot be shown to be demonstrably erroneous .
4. The Appeal Panel does not accept that the Medical Assessor incorrectly applied Chapter 11 of the Guidelines in relation to the scale of "self-care and personal hygiene" or made a demonstrable error in relation to the ratings in the PIRS scale of self care and personal hygiene. This ground of appeal is not made out.

1. The appellant submits the Medical Assessor erred in his assessment and incorrectly applied Chapter 11 of the Guidelines in relation to "social functioning" and that category should be assessed as moderate (class 3).
2. The examples under Table 11.4 for "Social functioning" in the Guidelines are:

"Class 1: No deficit, or minor deficit attributable to the normal variation in the general population: No difficulty in forming and sustaining relationships (eg a partner, close friendships lasting years).

Class 2: Mild impairment: Existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.

Class 3: Moderate impairment: Previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.

Class 4: severe impairment: unable to form or sustain long term relationships. Pre-existing relationships ended (eg lost partner, close friends). Unable to care for dependants (eg own children, elderly parents)."

1. The Medical Assessor assessed class 1 in relation to social functioning noting:

"As described in the main body of the report, there is a minor deficit attributable to the normal variation in the general population. His libido is reduced, which has

had an impact on his relationship with his wife, but they remain close. He has not lost any friendships and remains close to his sons. He maintains a close circle of friends, including ex-policemen."

1. On page 3 of the MAC, the Medical Assessor noted:

"He likes to surf and play ice hockey. He surfs both on his own and with friends. He is part of a local ice hockey team with fixtures in the summer season..."

1. In his statement dated 30 October 2023, the appellant stated at 16(l)-(m):

"l) Due to my injury, I have lost friendships which I value because I am emotionally numb towards people and have little motivation to maintain these relationships. The limited relationships that I do maintain with friends have been affected and I struggle to socialise with them.

m) I experience irritability on a regular basis which is generally directed towards family and friends; this has affected my interpersonal relationships."

1. Dr Nagesh, in his report dated 8 November 2023, assessed a class 2 for social functioning providing the following reasons:

"I have assessed him as class 2, mild impairment. My rationale is the claimant has lost contact with majority of his friends except for a few. His relationship with his wife is strained because of his irritability. There is no intimacy left between them."

1. Dr Berry, in his report dated 10 April 2024, assessed a class 2 for social functioning providing the following reasons: "There is some strain in his marriage and he has lost some friendships."
2. Dr Berry included some conduct in this scale under "Activities of Daily Living", writing:

"There is strain in his relationship with his wife. He feels closed off from her. He doesn't like being touched and their relationship lacks affection".

1. In the Prestige Health Services Australia Initial Assessment report dated 22 June 2023 Mr James Davidson, rehabilitation consultant and provisional psychologist, noted that the appellant reported that he had lessened his interactions with family and some friends.
2. The Appeal Panel noted that both Dr Nagesh and Dr Berry assessed class 2 for social functioning. The Medical Assessor did refer to the reports of Dr Nagesh and Dr Berry but did not comment on why his assessment of impairment in this scale differed.
3. The Medical Assessor assessed class 1 for social functioning noting that there is a "minor deficit attributable to the normal variation in the general population". The Medical Assessor noted that the appellant's libido was reduced, which had an impact on his relationship with his wife, but they remained close. The Medical Assessor reported that the appellant had not lost any friendships, remained close to his sons and maintained a close circle of friends, including ex-policemen.
4. While the Appeal Panel accepts that the appellant has maintained a close circle of friends, including ex-policemen, Dr Nagesh and Dr Berry both report a loss of some friendships. In his statement, the appellant describes losing friendships and existing friendships having been affected.
5. The class 1 descriptors include: "No difficulty in forming and sustaining relationships (eg a partner, close friendships lasting years)". The Appeal Panel considers that the assessment of Class 1 for social functioning is inconsistent with descriptors in the Guidelines for this scale. There has been an impact on the applicant's relationship with his wife involving a loss of intimacy. Further, the weight of the evidence does not support the finding that the appellant has lost no friendships.
6. The Appeal Panel finds that the reasoning process was not sufficiently clear and the Medical Assessor did not adequately explain how, in view of the evidence, the appellant had only a minor deficit attributable to the normal variation in the general population.
7. The Appeal Panel is satisfied that there is a demonstrable error in the MAC in relation to the ratings in the PIRS category of social functioning. This ground of appeal is made out.
8. The Appeal Panel noted that the appellant submitted that he should be assessed as class 3 in this category. However, the Appeal Panel consider that a class 2 rating is appropriate and consistent with the history of the appellant and the assessments of class 2 in this category by Dr Nagesh and Dr Berry.

1. The appellant submits the Medical Assessor erred in his assessment and incorrectly applied Chapter 11 of the Guidelines in relation to "concentration, persistence and pace" and that category should be assessed as moderate (class 3).
2. The examples under Table 11.5 for "concentration, persistence and pace" in the Guidelines are:

"Class 2: 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.

Class 3: Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (e.g. operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting."

1. The Medical Assessor assessed the appellant as Class 2 for concentration, persistence and pace. In the PIRS Rating Form, the Medical Assessor wrote:

As described in the main body of the report, there is mild impairment. He was able to focus throughout the assessment and stated that he could watch an episode of a television series for up to an hour. He can read autobiographies for a long time. However, he has been struggling with short-term memory and has become forgetful. He has considered studying but does not feel that he could work because of his reduced ability to focus on complex material."

1. Under "Social Activities/ADL", the Medical Assessor noted:

"He says he can forget chores such as cleaning the house and preparing dinner for dinner. He says that his short-term memory is 'not good'. However, he can remember the jobs he had been involved in decades ago. He has not made any dangerous mistakes like leaving the stove on or burning food. He manages his finances and takes his medication regularly. He says that he gets 'sidetracked easily'. He says he can watch TV series. He can focus on an episode for up to an hour. He says that he reads autobiographies and can read for hours.".

1. Under "Findings on Physical Examination" the Medical Assessor wrote "Not applicable". There was no reference to a mental state examination having been conducted.
2. In his statement dated 27 November 2024, the appellant stated on page 3 at 16(b):

"Due to the lack of sleep, I suffer from daytime fatigue. This affects my memory, my ability to concentrate and as a result, this makes me irritable."

"(h) I have an impaired memory and struggle to recall the simplest things. (i) I struggle with concentration and this has affected my daily ability to conduct daily tasks and engaging in activities that I once enjoyed such as reading books, watching TV and communicating with others."

1. Dr Nagesh, in his report dated 8 November 2023, assessed a class 3 for concentration, persistence and pace. He wrote:

"I have assessed him as class 3, moderate impairment. My rationale is the claimant's attention, concentration is poor. He can barely concentrate for five minutes. He cannot read books, newspaper articles, magazines. He cannot watch television shows and movies. He is forgetful where he has been misplacing his things".

1. Dr Berry, in his report dated 10 April 2024 assessed a class 2 for concentration, persistence and pace providing the following reasons:

"His concentration is reduced and he has to use strategies to remind him about tasks. His focus and pace were normal during the assessment."

1. Dr Berry under "Activities of Daily Living" wrote:

"On bad days, he does very little. Today, he went and fixed an old surf board and mowed the lawn. He only managed to complete half of the mowing. He can undertake maintenance tasks around the home. For example, he started painting some windows last April. He is not good at finishing jobs so lots of jobs are left half complete.

He is involved in ice hockey. He goes to watch some of the teams train. He steps in as a referee if they are short. He tries to avoid this as he never knows whether he will feel up to it when the day he is required comes round.

He can assist with household chores. He uses a whiteboard to write down tasks otherwise he forgets to do things like cooking and cleaning. His wife will remind him about some chores, for example to vacuum".

1. Dr Bhandari, in his report of 19 February 2024, noted that the appellant had not been able to play ice hockey for some time and only recommenced this at a lower grade.
2. The Appeal Panel accepts that the Medical Assessor noted that the appellant was able to focus throughout the assessment and said he could manage his finances, watch an episode of a television series for up to an hour and read autobiographies for a long time. The Medical Assessor did note that the appellant had been struggling with short term memory and had become forgetful.
3. The Appeal Panel noted that Dr Berry reported that the appellant was able to step in and referee an ice hockey match if a referee was required even though he tried to avoid this. The Appeal Panel considers the ability to referee an ice hockey match is an activity that requires focus for periods exceeding 30 minutes and such objective evidence should be given appropriate weight, alongside the Medical Assessor's observations of being able to persist with reading "for hours", despite the appellant's self-description of reduced attention span.
4. The appellant submits that the Medical Assessor erred in his assessment and incorrectly applied the Guidelines in relation to "concentration, persistence and pace".
5. The Medical Assessor is entitled to form his own clinical judgment on the day of assessment and having had due regard to the other medical opinions before him. The assessment of class 2 is clearly in accordance with the criteria in the Guidelines. The Medical Assessor has assessed in accordance with the correct criteria and provided reasons for why he did so. The Appeal Panel rejects the appellant's submission and finds no error in the rating of a mild impairment.
6. This ground of appeal is not made out.

1. The appellant submits that the evidence supports an assessment of class 3 [sic] for employability. We assume, as does the respondent, that this is an error and the appellant intended to submit that the evidence supports an assessment of class 5 for employability.
2. The appellant submits the Medical Assessor erred in his assessment and incorrectly applied Chapter 11 of the Guidelines in relation to "employability" and that category should be assessed as class 5.
3. The examples under Table 11.6 for "Employability" in the Guidelines are:

"Class 4: Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.

1. The Medical Assessor assessed the appellant as class 4 for employability. In the PIRS Rating Form, the Medical Assessor wrote:

On the balance of probabilities, it is my opinion that Mr Tonks is severely incapacitated from working. He is likely to struggle to work more than 15 hours per week due to his mental illness. His attendance is also likely to be erratic, depending on his emotional state on the day."

1. Under "Social Activities/ADL", the Medical Assessor noted:

"Mr Tonks says that he has considered taking a counselling course but feels that he does not have the attention span to do it. He says that there are not too many jobs that would accommodate his emotional needs. He cannot see himself working and describes lack of concentration as his main barrier. He says that there are days that he can function, but on others, he finds it difficult to do anything."

1. In his statement dated 30 October 2023, the appellant stated that he had not been employed since his last date of service due to his psychological condition. He stated that his last date of service was "in or around 13 October 2022."
2. Dr Nagesh in his report dated 8 November 2023, assessed a class 5 for Adaption (Employability) providing the following reasons: "I have assessed him as class 5, totally impaired, cannot work at all."
3. Dr Berry, in his report dated 10 April 2024 assessed a class 4 for Employability providing the following reasons:

"He is unfit to return to a role with NSW Police. He is likely to be able to work less than 20 hours per week is a less stressful position in a quiet environment. Pace would be reduced and attendance erratic. His hobby of making surf boards is potentially remunerable."

1. Dr Berry under "Activities of Daily Living" wrote:

"He is not working at all. He potters around with surfboards. He can make surfboards.

He will make one, use it for a while and then sell it. He feels this creative process is therapeutic".

1. In a report dated 22 June 2023, Dr Tanya Hollier, treating clinical psychologist, wrote:

"Mr. Tonks remains symptomatic at this time and remains unwell and unsuitable for any type of work for the foreseeable future". 2. Dr Pavan Bhandari, treating psychiatrist, in a report dated 19 February 2024, wrote:

"Mr Tonks remains unfit for any type of employment. It is unlikely that Mr Tonks will have the capacity to return to employment in the near future". 3. In a report dated 14 December 2024, Dr Bhandari wrote: "Mr Tonks remains unfit for any type of employment. It is hoped that vocational rehabilitation may be considered during 2025." 4. The appellant submits the Medical Assessor erred in his assessment, incorrectly applied the Guidelines in relation to "employability" and that category should be assessed as class 5. 5. The Appeal Panel accepts that the appellant has not worked since 13 October 2022. The Appeal Panel also note that there may be many reasons for not working in people receiving compensation payments with a partner working full-time. However, the appellant has started to make surfboards which he can sell and he is capable of refereeing ice hockey matches both indicative of conduct that may be remunerable or could be done in a voluntary vocational role. The Appeal Panel agrees that the appellant is likely to struggle to work more than 15 hours per week due to his mental illness and his attendance is also likely to be erratic, depending on his emotional state on the day. 6. In these circumstances, the Appeal Panel concludes that the Medical Assessor could assess the appellant as having capacity "to do a less demanding job for fewer than 20 hours a fortnight". 7. The Appeal Panel is not persuaded that the Medical Assessor erred in determining severe impairment (class 4) under this category. This ground of appeal is not made out. 8. In summary, the Appeal Panel was satisfied that there was no demonstrable error in the MAC in relation to the rating of class 2 in the PIRS categories of self care and personal hygiene, concentration, persistence and pace and employability. The Appeal Panel was satisfied that there was an error and the application of incorrect criterial in the assessment of social functioning. Social functioning is assessed as class 2. 9. Therefore, the Appeal Panel finds that the PIRS scales score 2 3 2 2 2 5, ascending order 2 2 1 2 2 4, median class 2, aggregate 13 so that the WPI = 7%. 10. For these reasons, the Appeal Panel has determined that the MAC issued on 24 March 2025 should be revoked, and a new MAC should be issued. 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 Ankur Gupta 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)