WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal from assessment of whole person impairment for psychological injury; employer challenges assessment of the psychiatric impairment rating scale (PIRS) for employability; consideration of no "bright line boundaries" for PIRS categories referred to in Jenkins v Ambulance Service of NSW; Held - no demonstrable error or application of incorrect criteria found in assessment of category of employability; Medical Assessment Certificate confirmed.

1. On 29 April 2025, Woolworths Group Ltd lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Walsh, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 1 April 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. Mr Dunn was employed as a truck loader for the appellant. Mr Dunn received constant threats from a group of workers at Woolworths Minchinbury Distribution Centre known as the 'Core Group', who had been members of a different trade union to the union that Mr Dunn was a member of. Mr Dunn sustained a psychological injury in the course of his employment as a result of this intimidation.
2. Mr Dunn made a claim for a lump sum payment for 17% whole person impairment (WPI) based upon an assessment made by Dr Argyle, consultant psychiatrist, in a report dated

24 September 2024. 3. Dr Argyle examined Mr Dunn on 18 September 2024. Dr Argyle records that Mr Dunn ceased work due to his psychological injury in late 2019 or in 2020. He records that Mr Dunn was encouraged to study voluntary work with St Vincent de Paul during 2023. Mr Dunn then found work in February 2024 for 32 hours per week restoring high end cars, which he was very comfortable with because he was working in a small environment with two other colleagues. 4. Dr Argyle diagnoses Mr Dunn as having post-traumatic stress disorder in partial remission, along with persistent depressive disorder. 5. As part of that assessment of 17% WPI, Dr Argyle considered that the appellant reached class 3 for employability in the psychiatric impairment rating scale (PIRS). Dr Argyle wrote:

"Mr Dunn has recently been working 32 hours a week in a car restoration business. He has a supportive employer who enables him not to interact with other people and is understanding if he needs time off. He has taken a whole week off because of the stress prompted by this interview. In the past, he has worked at a much higher level, starting and running a successful business and working as a union representative interacting with management."

1. Dr Argyle writes elsewhere in that report that Mr Dunn is not capable of returning to his previous work environment "as this would be too provoking to his PTSD and lead to significant deterioration", whether that work be for the appellant or for the union.
2. Dr Anand, neuropsychiatrist, has provided reports at the request of the appellant dated

2 December 2024 and 5 December 2024. 3. In his report dated 2 December 2024, Dr Anand records that Mr Dunn started work in January 2024 with Project X Bodyworks doing automotive restoration for 34 hours per week, but he ceased work on 18 September 2024 because he was not being paid by that business. He also records that Mr Dunn has a small car collection and has been working on that collection for at least two hours per week for the last three years. 4. Dr Anand writes that the main factor keeping Mr Dunn from returning to work is his ongoing psychological distress, marked by depression and anxiety. He opines that Mr Dunn's persistent mood swings, social withdrawal and lack of motivation create major obstacles to Mr Dunn re-entering the workforce. 5. Dr Anand diagnoses Mr Dunn as having major depressive disorder with prominent anxiety. 6. Dr Anand assesses Mr Dunn as having 17% WPI in that report dated 2 December 2024. He considers that Mr Dunn should be in placed in class 3 for employability, and writes:

"Mr Dunn's ability to work is limited to less than 20 hours per week. He might benefit from gradually returning to work, starting with part-time hours and tasks that don't increase his anxiety, such as jobs that allow for independence and minimal social interaction."

1. Dr Anand is asked if Mr Dunn is able to undertake his pre-injury employment and responds:

"Given Mr Dunn's current psychological condition, he is not able to return to his previous job. His depression and anxiety, along with his tendency to withdraw socially and lack motivation, significantly hinder his ability to perform work-related tasks. The stress and anxiety of returning to a similar work environment could worsen his symptoms, making it unlikely he could sustain his previous job without substantial therapeutic support."

1. In his report dated 5 December 2024, Dr Anand confirms that he took a history that Mr Dunn worked 34 hours per week with Project X Bodyworks between January and September 2024. Dr Anand writes that it "may be more appropriate" to classify Mr Dunn as class 2 for employability. Dr Anand then amends his assessment of WPI to 7%. His reasons for allocating class 2 for employability is as follows:

"Mr Dunn worked 34 hours per week at Project X Bodyworks from January to September 2024, ceasing due to a pay dispute rather than his psychological condition. Mr Dunn's ability to work is limited to around 30 hours per week. He might benefit from gradually returning to work, starting with part-time hours and tasks that don't increase his anxiety, such as jobs that allow for independence and minimal social interaction."

1. Mr Dunn has provided a statement dated 2 February 2025 wherein he states that he worked for 34 hours per week as a multi-ticket tradesman/panel beater/ painter with Project X Bodyworks between January and September 2024, and that he was able to manage this work because it was in a small environment and he did not speak much to other people at work. He states that he stopped work with Project X Bodyworks because he had not been paid for four weeks.

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 the Appeal Panel has come to the conclusion that there is no demonstrable error contained in the MAC and the assessment is not based on incorrect criteria.

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 MAC 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 examined Mr Dunn on 26 March 2025. He records that Mr Dunn initially spoke in a stuttering fashion, but this disappeared as the assessment progressed. The Medical Assessor records that Mr Dunn's thought form was logical and that the main themes were about the effects of the injury on Mr Dunn's life. The Medical Assessor records that Mr Dunn said: "I am a waste of time. Everything in my life is unfinished."
3. The Medical Assessor diagnoses Mr Dunn as having persistent depressive disorder.
4. The Medical Assessor records that Mr Dunn started working in January 2024 for 34 hours per week as a multi-ticket tradesman/panel beater/ painter with Project X Bodyworks. He records that Mr Dunn stopped that work around 18 September 2024, but he does not record a reason for this.
5. The Medical Assessor is aware that Dr Argyle placed Mr Dunn in class 3 for employability, and that Dr Anand placed Mr Dunn in class 2 for the same category.
6. The Medical Assessor makes the following assessments under the PIRS:

Self care and personal hygiene mild impairment Class 2

Social and recreational activities moderate impairment Class 3

Concentration, persistence and pace moderate impairment Class 3

1. The Medical Assessor assesses Mr Dunn as having 15% WPI.
2. The only PIRS category which is challenged by the appellant is the category of employability. The reasons for the decision by the Medical Assessor to place Mr Dunn in class 3 for employability are as follows:

"Class 3 and not Class 2 was selected because he was previously working 30 hours a week in December 2024, which is within a reasonable timeframe of this assessment. Therefore, he can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different, eg less stressful.

Work: He said he last worked September 2024. He said nobody talked him there, but he still found it a struggle.

Volunteering: He stated that he does not do any unpaid work.

He said the barriers to returning to work were poor sleep, the lack of motivation, and 'I blank out and don't know where the time has passed.'

He stated that there were never any issues with employment before the injury."

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
2. The appellant submits that the history taken by Dr Argyle that Mr Dunn took a whole week off work because of the stress prompted by the consultation with Dr Argyle is inconsistent with Mr Dunn's own statement that he stopped work with Project X Bodyworks because he had not been paid for four weeks.
3. The appellant also submits that there is no suggestion that Mr Dunn ceased work with Project X Bodyworks due to his psychological condition.
4. The appellant submits that the statement made by the Medical Assessor that Mr Dunn "was previously working 30 hours a week in December 2024" does not sit well against the statement made by the Medical Assessor in the same paragraph that "he can perform less than 20 hours per week in a different position." The appellant contends that the Medical Assessor should have stated that Mr Dunn can perform more than 20 hours per week in a different position.
5. The appellant contends that consistent with what was said by Gleeson JA in Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324 (Vannini), this conclusion made by the Medical Assessor amounts to a demonstrable error, and not a mere difference of opinion, because it is material and apparent on the face of the certificate. The appellant contends that Mr Dunn ought to be placed in class 2 for the PIRS category of employability.
6. Mr Dunn submits that the appellant places undue and unwarranted emphasis upon the medical evidence that was before the Medical Assessor and does not acknowledge the basis upon which the medical assessment was to take place. Mr Dunn relies upon what was said by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 (Wingfoot) at [47]:

"The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion...The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise."

1. Mr Dunn submits that the Medical Assessor clearly predicated his assessment upon how

Mr Dunn presented to him on the day of the examination, which is consistent with Wingfoot and cl 1.6(a) of the Guidelines. 2. Mr Dunn submits that there is no cogent basis to assume that the Medical Assessor ought to have assessed that Mr Dunn had a greater capacity to undertake work when he was not undertaking work in the vocation he had been in for the previous year. 3. Mr Dunn also submits that the Medical Assessor did not need to determine the cause of

Mr Dunn ceasing to work with Project X Bodyworks. The sole matter for determination was Mr Dunn's level of impairment based upon his presentation on the day of the examination.

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.
3. As already noted, the only PIRS category which is challenged by the appellant is the category of employability.
4. The Medical Assessor places Mr Dunn in class 3 for employability, which is set out in the Guidelines as follows:

"Moderate impairment: Cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful)."

1. The appellant contends that Mr Dunn ought to be placed in class 2 for the PIRS category of employability, which is set out in the Guidelines as follows:

"Mild impairment: Able to work full-time but in a different environment from that of the pre-injury job. The duties require probable skill and intellect as those of the pre-injury job. Can work in the same position, but no more than 20 hours per week (eg no longer happy to work with specific persons, or work in a specific location due to travel requirement)."

1. The Appeal Panel considers that the Medical Assessor has been somewhat careless in setting out his reasons for the class which he places Mr Dunn in for employability. The Medical Assessor states that Mr Dunn was previously working 30 hours a week in December 2024, when he records elsewhere in the MAC that Mr Dunn last worked in September 2024 (as does Dr Anand).
2. The Medical Assessor also writes that Mr Dunn can perform less than 20 hours per week in a different position when he has recorded that Mr Dunn was working for 34 hours per week as a multi-ticket tradesman/panel beater/ painter with Project X Bodyworks. Dr Argyle records Mr Dunn working 32 hours per week in that position, and Dr Anand records 34 hours per week.
3. However, what is crucial in the assessment of employability is that Mr Dunn cannot work at all in the same position which he had at the time he was injured. The Medical Assessor has accepted that Mr Dunn has had to work in a different position because of his injury. Both

Dr Argyle and Dr Anand conclude that Mr Dunn cannot return to his pre-injury employment, although Dr Anand provides some hope for Mr Dunn if he has significant therapeutic support. 4. Nonetheless, the weight of psychological opinion supports a conclusion that Mr Dunn cannot work at all in the same position that he held with the appellant, which allows for Mr Dunn to be placed in class 3 for employability. 5. The Appeal Panel accepts that the descriptors for class 2 and class 3 for employability are not discrete and distinct. That difficulty was recognised by Garling J in Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633 (Jenkins) at [63]: "...the boundaries between the classes are not of themselves bright line boundaries." 6. Class 2 refers to the worker being able to work full time but in a different environment from that of the pre-injury job, whereas class 3 refers to work in a different position for less than 20 hours per week. Mr Dunn has worked in a position with a supportive employer somewhere between full time hours and 20 hours per week. 7. Garling J then said in Jenkins at [72]:

"In order to succeed on this ground of appeal, it is necessary to show that the Appeal Panel erred because they could not conclude that the rating imposed by the AMS was open to him. The examples which I have just given, derived directly from the comments of the AMS, indicate that it was open to him to come to the conclusion which he did, and that the Appeal Panel was not in error when it so concluded."

1. The allocation of class 3 for employability was open to the Medical Assessor because of the evidence which supports a conclusion that Mr Dunn cannot work at all in the same position that he held at the time of his injury.
2. There is therefore no demonstrable error in the MAC. Nor has the assessment been made on the basis of incorrect criteria. For these reasons, the MAC issued on 1 April 2025 should be confirmed.