Borg v Downer EDI Works Pty Ltd

[2025] NSWPICMP 743

DETERMINATION OF APPEAL PANEL
CITATION:	Borg v Downer EDI Works Pty Ltd [2025] NSWPICMP 743
APPELLANT:	Joshua Stephen Borg
RESPONDENT:	Downer EDI Works Pty Ltd
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Professor Nicholas Glozier
DATE OF DECISION:	26 September 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); assessment of psychological injury under the psychiatric impairment rating scale (PIRS); appeal with respect to self care and personal hygiene, social functioning, and concentration, persistence and pace; Jenkins v Ambulance Service of NSW, Tasevski v Westpac Banking Corporation, Chalkias v New South Wales, and Tradieh v LM Hayter & Sons Pty Limited considered; Held – MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 3 June 2025 Joshua Borg lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Himanshu Singh, who issued a Medical Assessment Certificate (MAC) on 16 May 2025.

2. Mr Borg relies on the grounds of appeal under s 327(3)(c) and (d) 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 President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that the Medical Assessor made a demonstrable error in his assessment under the Psychiatric Impairment Rating Scale (PIRS) in respect of self care and personal hygiene. We conducted a review of the original medical assessment, limited to the grounds of appeal on which the appeal is made.

4. Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.

5. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

1. Mr Borg suffered a psychological injury in the course of his employment as a plumber and pipe layer with Downer EDI Works Pty Limited (Downer). The injury is deemed to have been suffered on 12 June 2021.

2. Using the PIRS, the Medical Assessor assessed 9% whole person impairment (WPI) placing Mr Borg in class 2 for self care and personal hygiene, travel, social functioning and concentration, persistence and pace. He assessed Mr Borg in class 3 for social and recreational activities and class 5 for employability. He did not make a deduction under s 323 of the 1998 Act and did not make an allowance for the effects of treatment.

3. Mr Borg appealed in respect of the Medical Assessor’s assessment of self care and personal hygiene, social functioning and concentration, persistence and pace.

PRELIMINARY REVIEW

1. We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.

2. As a result of that preliminary review, we determined that it was not necessary for Mr Borg to undergo a further medical examination because there is sufficient information in the file to determine the appeal.

EVIDENCE

1. We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.

2. The parts of the MAC that are relevant to the appeal are set out below.

SUBMISSIONS

1. Both parties made written submissions. They are not repeated in full, but we have considered them.

2. In summary, Mr Borg submitted that the Medical Assessor sought to determine causation of his injury by stating that he suffered alcohol use disorder due to the loss of his job. He said that the Medical Assessor applied the PIRS erroneously and too narrowly to assess him in class 2 for self care and personal hygiene.

3. Mr Borg said that the Medical Assessor erred in assessing him in class 2 for social functioning and that the history the Medical Assessor obtained supported assessment in class 4, particularly because of his inability to care for his daughter. Mr Bord said that assessment in class 2 for concentration, persistence and pace was also inconsistent with the history set out in the MAC. He stressed that the Medical Assessor failed to appreciate that the activities set out in the PIRS are examples only, referring to Jenkins v Ambulance Service of New South Wales[1] (Jenkins).

   [1] [2015] NSWSC 633 at [59]-[64].

4. In reply, Downer observed that the Medical Assessor’s statement about causation of alcohol use disorder did not impact on his assessment of WPI and that the Medical Assessor accepted a causal relationship with Mr Borg’s employment. Downer relied on a statement in Ferguson v State of New South Wales[2] as to four factors for determining whether there was an error in the application of the PIRS and said that the Medical Assessor had adequately considered the evidence and Mr Borg’s presentation to apply the “best fit” under the PIRS “using the methodology prescribed in Beatty v State of New South Wales – Nepean Blue Mountains Local Health District” [3] (Beatty) in respect of self care and personal hygiene.

   [2] [2017] NSWSC 887 at [24].

   [3] [2021] NSWPICMP 93.

5. Downer said that the Medical Assessor did not err in his assessment of social functioning because Mr Borg had been able to form a new relationship and that the deaths of two friends were not an example of a loss of close friendships.

6. Downer said that the Medical Assessor did not err in his assessment of concentration, persistence and pace and that he was able to rely on his own observation at the time of the examination. Downer said that the Medical Assessor had clearly set out his path of reasoning for each of the PIRS categories “as required by” Wingfoot Australia Partners Pty Limited v Kocak.[4]

   [4] [2013] HCA 43 t [48].

FINDINGS AND REASONS

1. The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.

2. In Campbelltown City Council v Vegan[5] the Court of Appeal held that an Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.

   [5] [2006] NSWCA 284.

3. In Queanbeyan Racing Club Ltd v Burton[6] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.

   [6] [2021] NSWCA 304 at [26].

The MAC

1. The Medical Assessor began by summarising the reports in the file – in particular, Dr Argyle who saw Mr Borg at the request of his solicitors, and Drs Paisley and Goodison who examined him on behalf of Downer. The Medical Assessor summarised the history that Mr Borg provided and details of his present treatment and symptoms.

2. The Medical Assessor described the mental state examination he undertook:

   “Mr Borg was seen over a video conference on 29 April 2025. He was clean, shaven and had long hair. He was wearing dark glasses. He took his glasses [sic] at times and was making good eye-to-eye contact and a rapport was established. He was smoking during the assessment and was drinking alcohol. There were no signs of agitation or retardation. He had a spontaneous speech with normal rate, tone and volume. He described his mood as up and down and may get anxious at times. His affect was reactive and mood congruent. He described his sleep as disturbed, though he sleeps for long hours and at irregular times. He had lost some weight. He described his energy and motivation to be up and down. He is able to enjoy certain things such as time with his partner. He denied having any active or passive suicidal thoughts, intents or plans and there were no thoughts of harming others. He did not describe any grandiosity, racing thoughts or increased energy levels. There was no evidence of formal thought disorder, no delusional pattern of thinking and no perceptual abnormalities. He was able to sustain his focus and attention during the assessment. He was orientated. He had reasonable insight into his issues. His judgement was partially impaired due to his poor-coping mechanism by using alcohol and drugs. He was future orientated, wanting to sort out the issues with his ex-partner to see his daughter.”

3. In his summary of injuries and diagnoses the Medical Assessor noted that Mr Borg had suffered childhood abuse but did not diagnose post-traumatic stress disorder as a result. He said that Mr Borg had history of alcohol use which was aggravated after his work injury. He diagnosed nicotine use disorder and “cannabis, harmful use.” The Medical Assessor said:

   “In my opinion, Mr Borg has sustained a psychological/psychiatric injury during his employment, which has caused a chronic adjustment disorder with mixed anxiety and depressed mood as per DSM-5. Mr Borg also presents with symptoms, which meet the DSM-5 TR criteria of alcohol use disorder and nicotine use disorder. In my opinion, his current alcohol use disorder has been the result of his employment due to the loss of his job. He continues to struggle with his day-to-day. He has received some treatment on and off, however has not been able to attend remission of his symptoms. In my opinion, he has attained maximum medical improvement and his condition has become stable and is unlikely to change substantially by more than 3% in the next 12 months with or without treatment. Though Mr Borg has history of childhood sexual abuse, he has never met the criteria of a psychiatric diagnosis. Because of it, I could not establish any pre-existing impairments in his level of functioning. Hence, I have not made any deduction for pre-existing impairment. There has not been any significant improvement in his symptoms with the treatment. Hence, there is no apportionment made for the effects of treatment. Overall, in my opinion, the final whole person impairment is 9%. In my opinion, he does not meet the criteria for posttraumatic stress disorder currently nor in the past.”

4. We agree with Downer’s submission that the Medical Assessor accepted that alcohol use disorder was a result of the work injury.

Assessment under the PIRS

1. The Medical Assessor was required to assess Mr Borg as he presented on the day of the examination, using his own clinical judgement to form a diagnosis and assess WPI.[7]

   [7] Guidelines paragraph 1.6.

2. Before we consider each of the impugned assessments under the PIRS, it is relevant to observe that the important part of the description of each class is the level of impairment – e.g. no deficit, mild impairment, moderate impairment. The PIRS recognises that there is a range of conduct which can be described as normal. Assessment in class 1 is appropriate where there is “no deficit or minor deficit attributable to the normal variation in the general population”.

3. Rather than providing criteria for assessment, what follows the description of the level of impairment in each class are some examples of limitations on activities which are consistent with the level of impairment. In Jenkins[8] Garling J said:

   “I am satisfied that the descriptions of the activities which give rise to a conclusion by an AMS of the extent of a disability of an individual by reference to each table in the PIRS, are simply, in my view, examples of activities which would indicate an assessable level of disability. Those examples, on their face, are not necessary to be found in each case, but may, in any particular case, be sufficient to support a conclusion as to the level of disability.”

   [8] At [65].

4. In Ballas v Department of Education (State of NSW) (Ballas),[9] Bell P and Payne JA explained the operation of the Guidelines:

   “Even if there may, as a matter of English language, be some overlap between some of the scales or categories of functional impairment, for the purposes of the WPI assessment exercise, particular conduct will fit within one or other of the scales. This calls for the correct characterisation of the conduct, ie whether it goes to ‘self care and personal hygiene’, ‘social and recreational activities’, ‘travel’, ‘social functioning (relationships)’, ‘concentration, persistence and pace’ or ‘employability’. This does not involve an exercise of discretion. If conduct is wrongly assigned to one scale, when it should have been assigned to another, this will result in the AMS taking into account an irrelevant consideration in the context of assigning a class to each of the distinct scales. This will inevitably bear upon the calculation of the WPI which is critical for an injured worker’s entitlement to compensation.”

   [9] [2020] NSWCA 86 at [94-[95].

5. In Tasevski v Westpac Banking Corporation,[10] Schmidt AJ said:

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

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

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

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

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

   [10] [2024] NSWSC 401 at [27]-[31].

6. To the extent that the Medical Appeal Panel’s statement in Beatty is inconsistent with those principles, we adopt Scmidt J’s statement, noting that the decision of another Appeal Panel is not binding on us. The concept of “best fit” relied on in that case is borrowed from a different chapter of the PIRS and inconsistent with Supreme Court authority.

7. Our task is not to determine whether the categorisation under the PIRS was “glaringly improbable” or “open” to the Medical Assessor. In Chalkias v New South Wales[11] Adamson J said:

   “I reject the submission that the Panel’s review is confined to cases where the Medical Assessment, or some aspect of it, is ‘glaringly improbable’. The submission finds no support in the wording of the WIM Act, which requires only that an error be ‘demonstrable’ or that there be ‘incorrect criteria’. These expressions, which have been the subject of judicial consideration (see above), are to be understood in accordance with their plain meaning. It appears from Ferguson v New South Wales at [24] (Campbell J) that the Medical Panel in its reasons used the expression ‘glaringly improbable’. It would be a misreading of Campbell J’s reasons to conclude that his Honour intended to suggest that the expression formed any part of the test for error in the context of ss 327 or 328.”

   [11] [2018] NSWSC 1561.

8. Griffiths AJ agreed with that statement in Masters v Healthshare New South Wales.[12]

   [12] [2025] NSWSC 821.

9. The Medical Assessor is directed by the standard MAP template to comment on other opinions and provide the reasons why his or her opinion differs. That is so the parties understand how and why a different result was reached, not because the Medical Assessor is required to agree with or choose between the previous assessments. The fact that another assessor made a different observation on a different day should not influence the Medical Assessor’s opinion.

10. In Tradieh v LM Hayter & Sons Pty Limited,[13] Stern JA said that the medical dispute between the parties was not a dispute between the assessments made by their independent medical examiners. Her Honour said:[14]

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

    [13] [2025] NSWSC 840.

    [14] At [37].

Self care and personal hygiene

1. The Medical Assessor assessed Mr Borg in class 2 because:

   “Mr Borg has been up and down in his self-care. He is not shaving regularly. He may not shower for two to three days and then showers. He is currently living with his brother, who lives with his partner. He mostly orders Uber Eats or may make noodles and other easy stuff. He used to cook earlier, but has not been cooking recently. In my opinion, Mr Borg would be able to live independently, though he may look unkempt occasionally and sometimes misses a meal or relies on takeaway food. He is able to look after himself adequately. He spends most of his day drinking alcohol or watching TV.”

2. While the Medical Assessor has adopted some of the words from the examples in the PIRS, we do not agree with Mr Borg’s submission that the Medical Assessor has only relied on the examples in the Guidelines and applied them narrowly. The Medical Assessor described Mr Borg’s hygiene and his living arrangements. He recorded the extent to which Mr Borg prepares food.

1. The examples in each class of Table 11.1 of the PIRS focus on the extent to which a worker can live independently. Mr Borg does have an impairment in respect of self care and personal hygiene but he lives as an independent adult at the home of either his brother or mother. He said in his statement that he is not “able to live independently because I do not have the money for it.” He also said:

   “Not much has changed to what I usually do at home. At home I can shower by myself, I can put clothes on by myself, however some days I do not shower, that usually happens once or twice a week. Before the injury I used to shower every single day, some days shower twice a day, now I do not do it as often. I can eat by all by myself; I do not have any issues with that.

   I do not need anyone to care for me. Me and my brother look out for each other and my mum is 5 minutes away so if I needed assistance, I would call her or text her.”

2. Dr Argyle, on whose report Mr Borg relied, assessed him in class 2.

3. The Medical Assessor considered all of the relevant factors and was not in error to assess Mr Borg in class 2.

Social functioning

1. Table 11.4 measures the impact of the injury on the existence and strength of a worker’s personal relationships.

2. The Medical Assessor assessed Mr Borg in class 2 because:

   “Mr Borg broke up with his ex-partner few months after the Workers Compensation Claim. He had his daughter at that time, who is 4 years now. She used to live with him, and he used to look after his daughter and cook for them as well. However, that relationship ended. He has struggled to see his daughter and is undergoing a mediation process. He does not have any friends anymore. His two best mates committed suicide last year. He may speak to another mate once a week. He has good support to drain out his feelings. He has been with his current partner for the last one year. They are not living together. However, they see each other more often, maybe twice or thrice in a week.”

3. Mr Borg has lost friends for reasons other than the injury. The injury aggravated his alcohol use. Mr Borg said in his statement that it was only after the injury that he used drugs and alcohol to “cope with the pain of what I was experiencing.” The relationship with his former partner broke down after the injury, influence by his alcohol use. Mr Borg told the Medical Assessor that when he did spend time with his daughter after the end of his relationship, he required assistance from his mother.

4. In 2023 his former partner obtained for an apprehended violence order because of intimidation and harassment and in 2024, Mr Borg underwent rehabilitation at Odyssey House. Though he told the Medical Assessor that he was not able to see his daughter, the reason is because of past events. Those facts are relevant to the assessment of social functioning but it is important to bear in mind that the Medical Assessor was required to consider Mr Borg’s functioning on the day of the examination.

5. Mr Borg told the Medical Assessor that he has a pending mediation with respect to access to his daughter. As at the date of the Medical Assessor’s examination, he was working toward gaining access. Mr Borg is able to maintain relationships with his mother and brother.

6. Importantly, Mr Borg has been able to form a new relationship with his partner whom he sees two to three times per week. The relationship has subsisted for more than a year and Mr Borg told the Medical Assessor that he enjoyed spending time with her.

7. We accept that the appellant may have warranted a moderate impairment rating earlier, based on the breakup with his partner. He has improved with his rehabilitation treatment and Odyssey House and demonstrated an ability to form and sustain a new relationship, demonstrating a current mild impairment.

8. Taking all of those factors into account, the Medical Assessor did not err in assessing Mr Borg in class 2.

Concentration, persistence and pace.

1. The Medical Assessor assessed Mr Borg in class 2 and said:

   “Mr Borg stated that he has never been an avid reader. However, sometimes he may fix some stuff around home. He just finished setting up his room. He used to be very handy and his skills have gone down. He stated that he would be able to read if required any instruction and follow them, though it may take him longer to finish a task. He was able to sustain his focus and attention and his concentration did not appear impaired during the assessment.”

2. In the experience of the medical members of the Panel, a worker’s ability to engage in the interview process is a good reflection of their ability to concentrate and persist with tasks and of the pace of their cognition in other areas of their life. It is not sufficient by itself, but, taken with other aspects of the history provided by the claimant or in the Commission’s file, is an integral part of the assessment of concentration, persistence and pace.

3. However, the Medical Assessor’s description of Mr Borg’s concentration, persistence and pace is demand-driven, in that he can focus on tasks when he is required to. If he has never been a reader, then his ability to read books is not relevant. Dr Argyle recorded that Mr Borg previously relaxed by working practically, such as fixing his car and that he was unable to do so at present. The Medical Assessor accepted that his skills have decreased and that Mr Borg has difficulty with “day to day stuff”. Mr Borg told the Medical Assessor that he has been struggling and feels drained.

4. While Mr Borg may be able to concentrate when necessary, his ability to persist with tasks and the pace at which he does them is significantly impacted. Taking all of the history that the Medical Assessor obtained into account, we consider that he was in error to assess Mr Borg in class 2. The correct assessment is class 3.

Assessment

1. For these reasons, we have determined that the MAC issued on 16 May 2025 should be revoked, and a new MAC should be issued.

2. The assessments are therefore class 2 for self care and personal hygiene, class 3 for social and recreational activities, class 2 for travel and for social functioning, class 3 for concentration, persistence and pace and class 5 for employability.

3. When those scores are arranged as required by paragraph 11.14 of the Guidelines, they are 2, 2, 2, 3, 3 and 5. The median score is 2.5, rounded to 3 and the aggregate is 17. Under Table 11.7, that converts to 19% WPI.

4. The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W29989/24
Applicant:	Joshua Stephen  Borg
Respondent:	Downer EDI Works Pty Ltd

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Himanshu Singh and issues this new Medical Assessment Certificate as to the matters set out in the table below:

Table - whole person impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-totals % WPI (after any deductions in column 6)
Psychological injury	21.6.2021	Chapter 11	N/A	19	0	19%
Total % WPI (the Combined Table values of all sub-totals)					19%