1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).

1. In June and July 2021, the appellant sustained physical injuries to his wrists while working for Coles Supermarkets Australia Pty Ltd (the respondent) as a delivery truck driver. The appellant was provided with light duties, which involved him standing at the front of a store supervising COVID check-ins.
2. The appellant then made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of a primary psychological injury which he attributed to the hostility of customers and a meeting with his supervisor and regional manager, in which he claimed he had been harassed, verbally assaulted and bullied.
3. The appellant relied upon an assessment of 22% whole person impairment (WPI) made by psychiatrist, Dr David Kumagaya, dated 19 May 2023. The respondent insurer arranged for the appellant to be examined by Dr Melissa Barrett, who in a report dated 3 May 2023 found that the appellant's symptoms did not satisfy the criteria for a psychiatric diagnosis.

Dr Barrett found that the appellant was experiencing significant stress due to his bilateral wrist injury which prevented him from working and engaging in usual household tasks.

Dr Barrett maintained her view in supplementary reports, dated 10 July 2023 and 3 January 2024. 4. Liability for the injury was initially disputed, however, after the commencement of proceedings in the Personal Injury Commission (Commission) in February 2024, orders were made, by consent, for a primary psychological injury to be remitted to the President for referral to a Medical Assessor for assessment pursuant to s 321A of the 1998 Act. 5. The Medical Assessor concluded that the appellant had suffered 0% WPI, having formed the opinion that the primary psychological injury had resolved and that the appellant was also suffering a secondary psychological injury, which was not compensable having regard to

s 65A(1) of the 1987 Act. 6. The appellant successfully appealed the MAC, with a Medical Appeal Panel (the first Panel) accepting that the Medical Assessor had fallen into relevant error. The appellant was

re-examined by Medical Assessor Nicholas Glozier and the first Panel adopted his conclusion that the appellant was suffering from a persistent depressive disorder resulting in 7% WPI. 7. The appellant filed an application for judicial review of the first Panel's decision under s 69 of the Supreme Court Act 1970. Before the Supreme Court it was argued, amongst other things, that the first Panel exceeded its jurisdiction by impermissibly concluding that the appellant had suffered a "secondary psychological injury", without using that term. 8. The Court found that the Medical Assessor and the first Panel were confined to an assessment of the impairment caused by the appellant's primary psychological injury, that being what the Commission had referred for medical assessment. That assessment could not turn on any view the Medical Assessor or the first Panel might have held about the appellant also having suffered a secondary psychiatric impairment. The Court held that the legislation and Guidelines required that the Panel to undertake its assessment of the appellant's primary psychiatric injury separately from a consideration of the impairment that had resulted from the physical injuries to his wrists and the pain which those injuries had caused. 9. The Court also found that the first Panel erred by failing to give adequate reasons in support of its assessment of the appellant in each of the PIRS categories when it adopted, without further explanation, Medical Assessor Glozier's conclusions, which the Court described as "brief and inadequate". 10. The first Panel's decision and statement of reasons were set aside and the matter remitted to the President to be heard by a differently constituted Medical Appeal Panel. The matter comes before the presently constituted Appeal Panel (the Appeal Panel) pursuant to the Court's orders.

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 the appellant should undergo a further medical examination having found that the MAC was affected by demonstrable error.

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.
2. Attached to the Application to Resolve a Dispute were written statements made by the appellant on 24 November 2022, 18 January 2023, 30 January 2023 and 16 May 2023.
3. The appellant's first statement dealt primarily with his physical injuries. The appellant stated that his symptoms had never fully resolved and he continued with bilateral wrist and elbow pain and discomfort. Due to continuing symptoms, the appellant struggled to attend to domestic and household tasks and had to give up many of his hobbies and activities. The appellant said this had impacted his psychological well-being. The appellant also had trouble driving and struggled whilst showering. The appellant expressed a desire to undergo surgery as he was no longer able to tolerate the pain. The appellant expressed the belief that the surgery was necessary to manage his physical symptoms and restrictions as well as his psychological well-being.
4. The appellant addressed the primary psychological injury in the statement dated 16 May 2023. The appellant described the difficulties he experienced performing the light duties he was assigned following his physical injuries. The appellant made enquiries as to whether there was another role he could perform. The appellant was then asked to attend an unplanned meeting without a support person. During that meeting, the appellant said he was unreasonably questioned, harassed and intimidated. The appellant said he was verbally abused and belittled for not being able to undertake his pre-injury duties as a result of his physical injuries. The appellant said he was told to go home and not return as he did not belong there.
5. The appellant said he felt belittled, shocked and victimised. He did not understand why he was being treated this way given how long he had been employed by the respondent. The appellant had a good relationship with all his colleagues and managers prior to this. The appellant said he felt he was being punished for sustaining physical injury at work.
6. The appellant said that, as a result of his injury, he continued to experience ongoing psychological symptoms affecting his daily activities and work capacity. The appellant continued to feel depressed, anxious and distressed, often found himself in a panic and low mood and had difficulty concentrating or maintaining a routine. The appellant struggled to find motivation to attend to simple tasks and became overwhelmed easily.
7. The appellant was consulting a psychologist, Mr Carl Nielsen, every month as well as his general practitioner.
8. The appellant relied upon a report by, Dr David Kumagaya, consultant psychiatrist, dated

19 May 2023. Dr Kumagaya took a history of the primary psychological injury that was consistent with the appellant's statement evidence. Dr Kumagaya expressed the opinion that the workplace stressors described by the appellant resulted in the emergence of symptoms of a primary psychological injury, namely major depressive disorder with anxious distress. 9. Dr Kumagaya was asked whether the appellant had sustained a primary or secondary psychological injury and noted:

"Mr Wetere sustained the primary psychological injury, major depressive disorder with anxious distress, as a result of his employment with Coles. Whilst it is acknowledged that Mr Wetere sustained physical injuries predating his psychological injury, it is noted that he was able to continue work. It was his specific experience of workplace stressors on 9 July 2021, which resulted in the onset of his psychological injury, and his subsequent full incapacity for work."

1. Dr Kumagaya made an assessment of 22% WPI with no deduction for pre-existing impairment or addition for treatment effect.
2. In a report from the appellant's general practitioner, Dr Eric Lim, dated 9 February 2023, it was noted that following the meeting on 9 July 2021, the appellant had difficulties sleeping and performing daily activities. The appellant had difficulties leaving home due to anxiety and panic attacks. He had flashbacks of the incident. The psychological distress had strained his relationships with his family and he was prone to anger.
3. The appellant's psychologist, Mr Carl Nielsen, prepared a report on 24 May 2023, in which he took a consistent history of the injury. Mr Nielson said that due to the injury, the appellant had noted a deterioration in his mental state characterised by anxious and depressive cognitions and irritability, frustration and anger regarding the treatment he had received. The appellant reported a range of symptoms which led Mr Nielson to diagnose an adjustment disorder with depressed and anxious mood. Mr Nielson said the injury was a primary psychological injury given the history provided.
4. The respondent qualified consultant psychiatrist, Dr Melissa Barrett to prepare a report on

3 May 2023. Dr Barrett took a history of the appellant's physical injuries and the events on and around 9 July 2021. Dr Barrett recorded:

"He reported that the main reason he has not been able to work since relates to his wrist injuries. He described himself as, "stressed". He stated he had "never been treated like that in my life" and he feels angry about the comments of the regional manager towards him which he regarded as demeaning. He worries about his wrist injuries, "just want to get them fixed". He reports being frustrated about the delay of treatment of his wrist and has tried to manage this by forgetting about time to reduce the stress of waiting. He is sleeping poorly due to pain in his wrist, hands and pins and needles. He has to strap his wrist to sleep but finds it difficult to sleep with his wrist constrained. His appetite is reduced. He stated his wrist condition prevents him from driving. He is able to enjoy himself and can laugh with his children. He is hopeful about the outcome of the surgery."

1. Dr Barrett concluded that the appellant's symptoms did not satisfy a psychiatric diagnosis commenting,

"In my view, Mr Wetere's symptoms did not satisfy that of a psychiatric diagnosis. Mr Wetere is experiencing significant stressors due to bilateral wrist injury which prevents him from working and engaging in usual household tasks. As a consequence, there has been a significant impact upon the family's finances, his wife has had to engage in full-time work and he has had to adopt carer responsibilities for their children. He expressed he is frustrated about the delay from the injury, in mid-2021, to treatment, with first surgery set for May 2023. In my view, Mr Wetere's symptoms reflect a proportionate and reasonable emotional reaction to the very challenging circumstances in which he finds himself. However, he does not meet the criteria for a psychiatric diagnosis."

1. In a supplementary report dated 10 July 2023, Dr Barrett responded to the report from

"I respectfully disagree with his diagnosis of major depressive disorder. In my view, the appropriate differential diagnosis would be of an adjustment disorder with depressed and anxious mood but not major depressive disorder. It was my view that the physical injuries, and their consequences in regard to both chronic pain, as well as his capacity to fulfil work and non-work roles, were the main stressors. I accept that there was a meeting in which Mr Wetere was allegedly belittled and criticised, and note that Dr Kumagaya records Mr Wetere's account that the manager made comments such as, "You're working in the wrong industry", "You shouldn't be here", "You're in the wrong job" and that he should "Go home until you sort yourself out". Whilst it is accepted that these alleged comments would be upsetting, in my opinion, it is not plausible that such comments would cause major depressive disorder, persisting for more than 18 months, in a person of normal psychological resilience.

I note the psychologist reports, Carl Nielsen, 22 July 2021 and 24 May 2023 as well as the GP report, Dr Eric Lim, dated 9 February 2023."

1. Dr Barrett said, as there was no psychiatric diagnosis, there was no permanent impairment resulting from a psychiatric condition. Dr Barrett said that if it were the case that the appellant had an adjustment disorder it would be expected that it would resolve with the resolution of the stressors. Dr Barrett commented:

"At the time I saw Mr Wetere the main stressors related to his wrist injuries and the impact of those upon his capacity to perform a role for which he had experience and training, and chronic pain. He was expecting to have surgery soon after my assessment, on 22 May 2023, and a second surgery, and was hopeful regarding the outcome of surgery. Therefore, even if Mr Wetere was experiencing an adjustment disorder, his condition would not be regarded as stable and permanent as there were treatments planned for the physical conditions which were the main stressors. Thus even if the diagnosis was of an adjustment disorder, his condition would not be regarded as stable and permanent and there could not be any assessment of whole person impairment performed at this time."

1. In a further supplementary report, dated 3 January 2024, Dr Barrett was asked to comment on clinical records from the appellant's general practitioners. Dr Barrett said she would need to reassess the appellant if an updated independent opinion regarding diagnosis was required.

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.
2. The Medical Assessor took a brief history of the injury. The Medical Assessor noted that the appellant felt overwhelmed by light duties assigned to him after the physical injuries, having to deal with aggressive people who resented having their COVID check-ins policed, particularly with the anxiety and hostility around the COVID pandemic. The appellant felt uncomfortable with the technology and unsure how to work the internet properly.
3. When the appellant told the front counter operator that he felt overwhelmed and anxious, she told him she would try to find him another job. The appellant was then called to an unplanned meeting with the regional manager and a supervisor, who gave him "a mouthful" and told him he wasn't meant to be in that industry.
4. The Medical Assessor noted difficulties the appellant had in relation to having his physical injury claim accepted and the impact of the physical injury on his life and functioning.
5. After recording an account of the appellant's current symptoms, treatment and social activities / Activities of Daily Living, the Medical Assessor diagnosed a secondary chronic adjustment disorder with depressed and anxious mood, stating:

"He described a depressed and anxious mood, insomnia, apathy, low self-esteem, impaired concentration, and depressive thoughts focused on the impact and consequences of his physical injuries. The principal stressor is the secondary effects of his physical injuries and their consequences (including the recent breakdown of his relationship) and not a primary psychological injury. His psychiatric condition was resolving as would be expected for an adjustment disorder in line with improvements in his physical condition until the treatment of his physical injuries was suspended and his physical recovery regressed. The effects of the physical injuries and their consequences are the principal preoccupation and source of distress because they are the barrier to his returning to work, relieving his financial problems and feeling in control of his life again."

1. The Medical Assessor commented that his opinion was consistent with Dr Barrett's examination. It was noted that Dr Kumagaya had not commented on the contribution of primary versus secondary causes for the appellant's symptoms, nor had the appellant's treating psychologist commented on the impact of the secondary psychological effects of his physical injuries. The Medical Assessor concluded:

"In my view, the distress Mr Wetere experienced at the point of departure from his employer has been resolved and replaced by the problems associated with his physical injuries. Any whole-person impairment due to a psychological injury is caused by a secondary psychological injury."

1. The Medical Assessor found that the percentage of WPI caused by a primary psychological injury was 0%. There was no ongoing primary psychological injury causing impairment.

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 submits that the Medical Assessor erred by:

(a) making an impermissible finding that the appellant had a secondary psychological injury;

(b) failing to provide any or any adequate reasons for finding that the effects of the primary psychological injury had resolved; and

(c) failing to provide an assessment of impairment on the basis of the appellant's current psychological symptoms.

1. The appellant submitted that there was no dispute as to a secondary psychological injury raised in the notices issued pursuant to s 78 of the 1998 Act by the respondent and no determination made by a Member of the Commission as to the existence of a secondary psychological condition/injury. The task of the Medical Assessor was to provide an assessment of permanent impairment resulting from the conceded primary psychological injury. The Medical Assessor impermissibly found there was a secondary psychological injury in the nature of a secondary chronic adjustment disorder with depressed and anxious mood and found that any WPI was due to the secondary psychological injury. The appellant relied upon Davis v Pizza Pan Equity Group Pty Ltd [2024] NSWPICMP 188 at [34] and [36] and said it was well-settled that the task of determining injury was one for a Member of the Commission and not a Medical Assessor.
2. The appellant further submitted that the Medical Assessor had found that the primary psychological injury had resolved based on an assumption that an adjustment disorder would resolve as expected. The Medical Assessor failed to provide reasons as to why he considered the primary psychological injury had resolved in the face of continuing symptoms.
3. Finally, the appellant submitted that the Medical Assessor failed to disentangle the effects of the primary psychological injury and any effects of a secondary psychological injury. The Medical Assessor was required to provide an assessment of permanent impairment and then disregard any portion that was attributable to any secondary psychological injury.
4. In opposing the appeal, the respondent disputed that the Medical Assessor had impermissibly made a finding of a secondary psychological injury. The Medical Assessor acknowledged the primary psychological injury and appropriately conducted a clinical assessment of the appellant as he appeared on the day of the assessment. The Medical Assessor appropriately considered the secondary psychological condition when determining the proportion of impairment due to any previous injury, pre-existing condition or abnormality. The Medical Assessor had appropriately distinguished the secondary psychological condition and made no permanent impairment assessment of that condition.
5. With regard to the appellant's submission that the Medical Assessor had erred in finding that the primary psychological injury had resolved, the respondent submitted that the Medical Assessor had conducted a clinical assessment relying on information from the appellant as recorded in the MAC. The Medical Assessor's finding was supported by the appellant's statement, dated 24 November 2022, outlining the significance of the physical injuries on his psychological condition, as well as the evidence from Dr Barrett.
6. The respondent submitted that the Medical Assessor had provided reasons for his decision and referenced the evidence in support of that opinion. The Medical Assessor noted that the appellant's independent expert and treating practitioners had not traversed the issue of a secondary psychological injury.

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. Section 65A of the 1987 Act contains special provisions in respect of impairment resulting from psychological injuries and provides:

"65A Special provisions for psychological and psychiatric injury

(1) No compensation is payable under this Division in respect of permanent impairment that results from a secondary psychological injury.

(2) In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury."

1. The expressions, "primary psychological injury" and "secondary psychological injury" are defined in s 65A(5) to mean:

"primary psychological injury means a psychological injury that is not a secondary psychological injury.

secondary psychological injury means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury."

1. Considering these provisions, the Supreme Court in Mercy Connect Limited v Kiely [2018] NSWSC 1421 found:

"The statutory scheme comprising of the WIM Act and the Workers Compensation Act creates a two-step approach in assessing the degree of WPI for a psychological injury. The assessor must first calculate the entire degree of psychological injury in line with the PIRS categories. The secondary psychological injury must then be assessed and deducted in accordance with s 65A of the Workers Compensation Act, leaving the primary psychological injury remaining.

This two-step process accords with the referral of the Workers Compensation Commission on 24 October 2016. This referral provided for the AMS to assess the degree of WPI arising out of the primary psychological injury sustained by Ms Kiely as a result of the incident, excluding "any impairment or symptoms arising from or attributable to, the secondary psychological condition."

1. The proper approach to a secondary psychological injury was clarified in Matheson v Baptistcare NSW & ACT [2025] NSWSC 213, where Basten AJ found [at 55]:

"In stating that "no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury", s 65A(2) is badly worded: it does not require the medical assessor to have no regard to such impairment or symptoms; on the contrary, they are to be identified so as to exclude them from the assessment process. That exercise must be undertaken in conjunction with the assessment of the degree of permanent impairment attributable to the primary psychological injury the subject of the claim. Thus, a secondary psychological injury is to be identified and then disregarded in calculating the degree of permanent impairment arising from the injury the subject of the claim."

1. It is significant, however, that in the cases above, there was an agreement between the parties or explicit finding that the worker had both a primary psychological injury and a secondary psychological injury.
2. In this case, while the evidence before the Medical Assessor, including the history obtained during his examination and Dr Barrett's reports, referred to the impact of the appellant's physical injuries on his psychological well-being, there was no mention in the referral of a secondary psychological injury. There was no agreement between the parties or determination by a Commission Member that the appellant had sustained a secondary psychological injury. In these circumstances, it was not open to the Medical Assessor to find for himself that the appellant had sustained a secondary psychological injury.
3. As Schmidt AJ noted in this case, whether a person has suffered an injury is for the Commission, not a Medical Assessor or Appeal Panel to determine: s 105 of the 1987 Act and Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 at [111]- [112].
4. In State of NSW (Department of Education) v Kaur [2016] NSWSC 346, Campbell J said at [22]:

"...I should point out that in my judgment, the question of whether an injury is a primary or secondary psychological injury is one for the Commission to determine and not one that arises as part of a medical dispute as defined by s 319 of the 1998 Act."

1. Consistently with the findings of Schmidt AJ, the Appeal Panel accepts that the MAC is affected by demonstrable error. The Medical Assessor exceeded his jurisdiction by finding that the appellant suffered a secondary psychological injury. The Medical Assessor was required to undertake his assessment of the appellant's primary psychological injury separately from a consideration of any impairment that had resulted from the physical injuries and the pain and functional impairments which those injuries had caused.

1. Medical Assessor Andrews of the Appeal Panel conducted an examination of the worker on 15 September 2025 and reported to the Appeal Panel. That report is extracted below:

"1. The workers medical history, where it differs from previous records

Jason Wetere is a 43-year-old Māori man who lives on a 300-acre property at Buckendoon in New South Wales. He lives with his six-year-old son and four-year-old daughter, his mother, who has a senior position with Feros Aged Care, a younger brother who is studying, an intellectually disabled sister and her partner.

Mr Wetere commenced work with Coles in April 2020. He was quickly promoted to a position of service manager responsible for the truck fleet that delivers groceries. On 21 June 2021, he injured his right wrist and was put on restricted duties. He injured his left wrist on 8 July 2021.

He was deployed to check vaccine status for customers entering the store, but felt overwhelmed by the task. He had little experience with technology, and people were assertive or aggressive when confronted with the vaccine check. Mr Wetere only lasted about 15 minutes before discussing his distress with a manager who suggested that another role may be found for him.

He was taken to the back of the business, where he was dressed down by a senior manager who told him that he was useless and in the wrong industry. Mr Wetere had prided himself on being a practical, hard-working man and felt the attack unwarranted. He felt shocked, and his mental health declined.

He left work on 9 July 2021 and has not worked in any capacity since.

2. Additional history since the original Medical Assessment Certificate was performed

Mr Wetere's general practitioner is Dr Eric Lim. He had been seeing a psychologist every 2 to 4 weeks, but this stopped a few months ago because Mr Wetere was unable to continue without financial support.

Mr Wetere had a single seizure several years ago. Because he had been a professional driver, he continued Levetiracetam until recently. He has stopped this medication for financial reasons and because he felt it was unnecessary.

He had been using medicinal cannabis to assist with his wrist pain, but has also stopped this medication.

Mr Wetere has had bilateral cubital tunnel and ulnar releases (he thinks in 2023, but was unsure) for his wrist injury. He continues to have significant pain, numbness and physical limitations related to that injury. For example, he often drops things because of reduced dexterity. He can't move his fingers freely and is no longer able to play the guitar or drums, instruments that he was proficient at. He said, "I can't really grab anything." He limits his driving to the local area because his wrists become more painful, and he struggles to grip the steering wheel on longer trips.

He rarely drinks alcohol and does not use illicit drugs.

His appetite is reduced, and he has lost weight. He is no longer exercising and has lost muscle mass. He had prided himself on being a large, powerful man, able to work hard physically. He had weighed 120 kg when he had been working. His weight now fluctuates between 73 and 102 kg. His mother buys protein supplements for him when his weight gets too low. He estimated his current weight at 88 kg, his height 188 cm and BMI 24.9, at the upper range of the normal weight. The BMI may not be an accurate reflection of Mr Wetere's situation because he has lost significant muscle mass.

Mr Wetere was born in Darwin, lived briefly in New Zealand before moving to northern Queensland. He was raised with two younger brothers and a sister. His parents separated but remained married. His father died about two months ago.

He left school during year 10 and has worked in labouring jobs. He has done almost four years of a mechanics apprenticeship, but was unable to complete it because his employer left the business.

He was in a 12-year relationship with his children's mother. She left the relationship after he became unwell and was unable to continue to work.

The family had moved to Sydney about a year before the injuries. During this time, Mr Wetere's social activities revolved around his family.

Mr Wetere has a pervasively low mood without diurnal variation. He has a reduced capacity to experience positive emotions, but noted that he enjoys spending time with his children.

He is frequently anxious, especially when interacting with others. He worries about his circumstances.

He has reduced motivation to be active and is often fatigued.

He has subjective problems with concentration, attention and memory.

He has had suicidal thoughts without plans or intent. He finds his children to be a strong protective factor.

He has initial and middle insomnia, frequently getting between 4 and 6 hours of sleep nightly.

Mr Wetere rises early, between 5:30 AM and 6 AM. He makes himself coffee and toast, which he tries to have before his children wake. When his children are up, he helps get their school clothes together while his mother makes breakfast and packs their lunch.

He usually accompanies them to their preschool and school, although his mother often drives.

When he returns home, he spends most of the day sitting in his bedroom. He doesn't help with housework except occasionally.

He showers about every second day, often assisted by his son.

Before becoming unwell, Mr Wetere was an active man. He enjoyed gold fossicking, fishing, motorbike riding, four-wheel driving, camping and playing music. However, many of these activities were infrequent after he moved to Sydney in the year before the accident. Since moving to the Northern Rivers area of New South Wales, he has not been socially active and has not made new friends.

He no longer participates in his previous activities. This is partly due to low motivation and partly due to an inability to do those things. For example, he cannot ride a motorbike or play music because of the physical limitations in his hands.

He doesn't go out to restaurants or cafés or take his children to parks or the beach. He recently attended a family barbecue, which was a wake for his father. This was a one-time event, and he mentioned that the family typically did not celebrate birthdays or other special occasions at home.

He drives himself locally and is comfortable doing so. He prefers to drive rather than be a passenger because he feels that, as a previous professional driver, he is more competent and safer. He has travelled to Sydney several times, driven by his mother, although he might drive for a short period. He is comfortable travelling except for the physical discomfort in his wrists and hands.

In 2023, he travelled to Hawaii for the wedding of his then-partner's sister. Her family paid for and organised the trip. He said that it was easy because he just had to follow the others. He described the trip as "awesome, all went fine, no dramas."

His relationship with his mother is stressed and she is not physically well. He gets along well with his brother, sister and her partner, and his children. His ex-partner has the children on weekends, but he doesn't speak to her during the handover.

He has one friend who occasionally visits from the Gold Coast; Mr Wetere estimates that this is once every 3 to 6 months. He has no other friends.

Before his injury, Mr Wetere was able to read car repair manuals and undertake complex mechanical repairs such as rebuilding a gearbox. He had no interest in reading recreationally. He now struggles to read at all. For example, he said he finds it difficult to read letters that come home from school. He has the television on but is unable to attend to the show. He has tried to watch movies and shorter video clips, but has given up because he loses focus. He doesn't use social media or computers.

Mr Wetere was assessed via an audiovisual link in his home for 75 minutes. The connection quality was adequate to do a comprehensive assessment. He identified himself with his driver's license, and I explained that I would not be offering treatment advice, that the session could not be recorded and the limits to confidentiality.

He presented as a Māori man, casually attired in a dark T-shirt, wearing a baseball cap and a beard.

He was cooperative during the interview and openly answered my questions.

He described a low mood and anxiety. His affect was reactive and his anxiety apparent during the interview.

There was no evidence of any disorder of thought-form or perception.

At the end of the interview, I asked if he had anything else to say and he agreed that we had covered everything necessary.

Medical assessor Clayton Smith, 5 April 2024, had diagnosed Mr Wetere with a chronic adjustment disorder. MA Nicholas Glozier, as part of an appeal panel that reported on 14 August 2024, diagnosed a persistent depressive disorder.

• persistent depressive disorder with an ongoing major depressive episode

The DSM-5-TR Criteria for Persistent Depressive Disorder (PDD) are:

Depressed mood for most of the day, more days than not, for at least 2 years.

While depressed, the individual experiences at least two of the following:

Poor concentration or difficulty making decisions

During the 2-year period, the person has not been without symptoms for more than 2 consecutive months.

Criteria for a Major Depressive Episode may be continuously present for 2 years.

This is referred to as "Persistent Depressive Disorder with persistent major depressive episode."

A. Five (or more) of the following symptoms must be present during the same 2-week period, representing a change from previous functioning. At least one must be either depressed mood, or loss of interest or pleasure.

Depressed mood most of the day, nearly every day (subjective or observed).

Markedly diminished interest or pleasure in almost all activities.

Significant weight change or appetite disturbance (±5% body weight/month).

Psychomotor agitation or retardation, observable by others.

Feelings of worthlessness or excessive/inappropriate guilt, nearly every day.

Diminished ability to think or concentrate, or indecisiveness.

Recurrent thoughts of death, suicidal ideation, or suicide attempt.

Symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.

The episode is not attributable to the physiological effects of a substance or another medical condition.

The episode is not better explained by schizoaffective disorder, schizophrenia, or other psychotic disorders.

There has never been a manic or hypomanic episode, unless substance-induced or due to a medical condition.

Mr Wetere has been unwell for more than four years, warranting the persistent depressive diagnosis. He has experienced all nine symptoms of major depression at times.

Mr Wetere lives as an independent adult with his children and extended family. He showers every second day without prompting. He often misses meals and has had significant weight loss and fluctuation. He no longer takes exercise. He doesn't help with household chores, which is partly due to his depression-driven lack of motivation.

He has few social and recreational activities. He recently attended a family barbecue in remembrance of his father. He has little inclination to go out and meet new people and has no friends in the area. He occasionally has a visit from a friend who lives in Queensland. He is not motivated to go to restaurants, cafés or have outings with his children.

He is independent with local travel and can travel further afield. On trips such as those to Sydney, he has someone with him, which is necessary because he does not have the physical ability to drive for more than 15 to 30 minutes. He managed a trip to Hawaii in 2023 with his then-partner and family. He is functioning within the normal variation in the general population.

His relationship with his mother is strained, and he is prone to irritability and anger. He gets on well with his brother, sister and her partner. He is close to his children. His 12-year relationship broke down after his work injury, and he has not sought any other opportunities.

He has never had an interest in reading, but was able to read technical manuals and do complex repairs. He is no longer able to do this. He cannot watch a movie and loses focus, even in short videos of 20 minutes or less. During my interview, he was imprecise about details and event sequences.

Mr Wetere has a moderately severe depression. He spends most of his time sitting in his bedroom doing very little. His motivation to be active is low. He has lost self-confidence. While he says that he would like to get into the workforce, even if his physical injuries were not present, he would struggle to do so with his mental health as it is. He hasn't worked in more than four years, and it is untested how he would fare in a structured work environment. For these reasons, I consider his impairment severe.

There are no pre-existing mental health problems, and so no deduction is warranted.

Mr Wetere has not had a significant or complete reduction in his symptoms or impairment with treatment. He is no longer seeing a psychologist and does not take psychotropic medication by choice. There is no indication for an adjustment for treatment effect.

4. Results of any additional investigations since the original Medical Assessment Certificate

1. The Appeal Panel has considered Medical Assessor Andrews' findings and adopts them.
2. Medical Assessor Andrews' diagnosis is consistent with that reached by Dr Kumagaya and the persistence of the appellant's symptoms over time. Although Dr Barrett found the appellant's symptoms did not satisfy a psychiatric diagnosis and commented on stress associated with the appellant's physical injuries, her opinion must be viewed in light of her opinion that it was not plausible that the events on and around 9 July 2021 would cause a major depressive disorder, persisting for more than 18 months. As noted above, the parties have agreed that those events did in fact give rise to a primary psychological injury in this case.
3. In the Appeal Panel's view, the evidence does not support a finding that the primary psychological condition has abated or resolved. The appellant has continued to report psychological symptoms from the time of the relevant events until the time of the re-examination. Until recently, the appellant was receiving psychological treatment from Mr Nielsen and support from his general practitioner. Medical Assessor Andrews has explained how the appellant's presentation at the re-examination was consistent with the DSM-5-TR Criteria for Persistent Depressive Disorder.
4. Although there is evidence of the appellant's physical injuries having a psychological consequence, for the reasons explained above, the Appeal Panel's sole task in this case is to assess the impairment resulting from the accepted primary psychological injury.
5. Medical Assessor Andrews found a Class 2 impairment in the Psychiatric Impairment Rating Scale (PIRS) category, "Self-care and personal hygiene". Table 11.1 of the Guidelines provides that a Class 2 impairment is consistent with:

"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."

1. The Appeal Panel notes this assessment is consistent with that made by Dr Kumagaya. The Appeal Panel accepts that the evidence is consistent with there being more than a minor deficit attributable to the normal variation in the general population which would result in a Class 1 impairment. The Appeal Panel is also not persuaded that the appellant could not live independently without regular support.
2. A Class 3 impairment was found in the PIRS category "Social and recreational activities". Table 11.2 of the Guidelines relevantly provides that a Class 3 impairment in this category is consistent with:

"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. Dr Kumagaya also found a Class 3 impairment in this category. In the Appeal Panel's view, the information obtained in the re-examination and the documentary evidence demonstrates that there is more than a minor or mild deficit in the appellant's functioning in this category since the injury. The appellant does leave his residence for limited social and recreational activities and is comfortable in the company of his children and extended family as well as a friend who visits from Queensland. The impairment is therefore not severe or consistent with Class 4.
2. A Class 1 impairment was found in the PIRS category "Travel". Table 11.3 of the Guidelines relevantly provides that a Class 1 impairment in this category is consistent with:

"No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision."

1. Medical Assessor Andrews' assessment in this category departs from that made by Dr Kumagaya who found a Class 3 impairment on the basis that the appellant required a support person to travel to familiar areas and had been unable to travel to unfamiliar areas. However, Medical Assessor Andrews' assessment is consistent with the appellant's account at the re-examination of being able to travel independently locally and further afield and managing a trip to Hawaii. While support was required for travel for longer distances, that was not a consequence of the primary psychological injury but the appellant's physical limitations.
2. A Class 3 impairment was found in the PIRS category, "Social functioning". Table 11.4 of the Guidelines relevantly provides that a Class 3 impairment in this category is consistent with:

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

1. The Appeal Panel notes that Medical Assessor Andrews' finding of a moderate impairment is higher than Dr Kumagaya's finding of a mild or Class 2 impairment in this category, which the Guidelines indicate is appropriate for:

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

1. The evidence before the Panel indicates that while the appellant has been able to maintain relationships with his children and siblings, his relationship with his mother is strained and his relationship with his long-term partner has, since Dr Kumagaya's assessment, completely broken down.
2. A Class 3 impairment was found in the PIRS category "Concentration, persistence and pace". Table 11.5 of the Guidelines relevantly provides that a Class 3 impairment in this category is consistent with:

"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. Medical Assessor Andrews' assessment in this category is consistent with that made by Dr Kumagaya who also found a Class 3 impairment. The Appeal Panel accepts that Class 3 is the closest fit given the history obtained at the time of the re-examination and in light of the other evidence.
2. A Class 4 impairment was found in the PIRS category "Employability". Table 11.6 of the Guidelines relevantly provides that a Class 4 impairment in this category is consistent with

"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 Appeal Panel notes that Dr Kumagaya found a Class 5 total impairment in this category.
2. The Appeal Panel notes that the appellant has previously worked in physically demanding roles, relying on his strength and dexterity. With his wrist injuries, these options are now closed to him. The Appeal Panel is, however, only able to assess impairment resulting from the primary psychological injury. The appellant has lost motivation but would be able to engage in some work. The Appeal Panel accepts that this work might be less demanding and that his attendance might be erratic. The Appeal Panel has taken into account the appellant's long-term unemployment and does not accept that there is only a moderate impairment because it is untested how he might fare in a structured workplace. The Appeal Panel does not believe that his reduced motivation would render the appellant unable to work at all. Therefore, the Appeal Panel accepts there is a severe Class 4 impairment, rather than Class 3 or 5.
3. There is no evidence of any pre-existing injury, condition or abnormality for the purposes of

s 323 of the 1998 Act. As indicated above, there is also no basis on which to exclude or disregard impairment resulting from a secondary psychological injury for the purposes of

s 65A of the 1987 Act. 4. For these reasons, the Appeal Panel has determined that the MAC issued on 5 April 2024. 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 Clayton Smith 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)