Bourke Shire Council v Holt
[2025] NSWPICMP 544
•25 July 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Bourke Shire Council v Holt [2025] NSWPICMP 544 |
| APPELLANT: | Bourke Shire Council |
| RESPONDENT: | Daniel Holt |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | John Lam-Po-Tang |
| DATE OF DECISION: | 25 July 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appeal by Council against 16% whole person impairment (WPI) assessment for psychological injury; whether additional evidence admissible; whether travel category of psychiatric impairment rating scale (PIRS) incorrect; whether relationship breakup a behavioural consequence of the injury; whether 1% WPI for treatment effect incorrect; Held – additional information application dismissed as employer had the evidence (bank statements) prior to the assessment; respondent worker’s additional statement rejected as no application or submissions made as to admissibility and content did not satisfy section 328(3); travel category confirmed at Class 2; social functioning argument that relationship breakup occurred before onset of psychological condition rejected; Chapter 1.6a of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 considered and applied; PIRS authorities considered and applied; treatment effect modifier rejected; MAC revoked; 15% WPI certified. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 8 April 2025 the appellant employer, Bourke Shire Council, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 10 March 2025.
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):
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
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.
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.
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). “WPI” is reference to whole person impairment. “Baseline WPI” is a reference to the total WPI assessed before deduction for the effect of pre-existing injury, condition or abnormality pursuant to s 323 of the 1998 Act.
RELEVANT FACTUAL BACKGROUND
On 7 February 2025 a further amended referral was made in this matter seeking a WPI assessment for psychiatric and psychological disorders that occurred on a date of
5 December 2022.The matter was originally assessed by Medical Assessor Ronald Gill, psychiatrist, on
11 October 2024. Medical Assessor Gill issued a MAC on 21 October 2024 indicating that maximum medical improvement had not occurred.Proceedings were restored and the matter was referred to Medical Assessor Michael Hong, the present Medical Assessor.
Mr Holt was born in 1982 and is single. He commenced employment with the appellant employer as a relief plant operator driving water trucks, rollers, graders, and tractors with slashers whilst doing road construction and general labouring type work.
Between November 2022 and December 2022, he was subjected to bullying and harassment by work colleagues. This began on 3 November 2022 when two colleagues placed a set of fake testicles on the towbar of Mr Holt's vehicle, which was parked in the council depot carpark. His then girlfriend picked up his car from the depot at about 2.00pm that day and reacted very badly when she noticed the offending items on the towbar later that day when Mr Holt came to collect his vehicle. Mr Holt had to call the police in order to retrieve the keys to his unit, which his girlfriend refused to hand over.
This event caused Mr Holt's relationship to break down.
In the following days Mr Holt's colleagues teased him on the two-way radio and on
8 November 2022 the local radio station, 2web, began playing love songs which it said was requested by Mr Holt for Rowena.Whilst Mr Holt did not know who had made those requests, he suspected that it was someone from his workplace. The song requests continued up to 24 November 2022 until Mr Holt's team leader made an announcement at work requesting that this conduct stop.
Mr Holt later identified the persons responsible for placing the requests, who were work colleagues.
Mr Holt originally found out about the song requests because his ex-girlfriend had contacted the police who then spoke to him.
The Medical Assessor assessed a 16% WPI.
PRELIMINARY REVIEW
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.
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 no error had been established by the appellant employer.
Fresh evidence
Section 328(3) of the 1998 Act provides:
“(3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.”
The appellant employer seeks to admit the following evidence:
(a) Google Map screen shot of the distance between Cobar and Swansea;
(b) Google Map screen shot of the distance between Cobar and Newcastle, and
(c) Mr Holt’s bank statements.
The respondent, Mr Holt, sought also to admit a further statement dated 16 April 2025 in response to the matters raised by the appellant employer.
Submissions
The appellant employer described the procedure whereby it obtained the bank statements, and why they had not earlier been lodged. It served a Notice for Production on Mr Holt on 19 September 2024 but the bank statements, the subject of the notice, were not produced until 4 October 2024, the appellant employer noting that they should have been produced by 26 September 2024.
The first medical assessment occurred on 11 October 2024 with Medical Assessor Gill and on 26 November 2024 a Certificate of Determination issued following Medical Assessor Gill's MAC, noting that proceedings could be restored when maximum medical improvement had been attained.
The appellant employer advised that on 19 December 2024 Mr Holt served a further medical report and advised that they would be seeking to have the proceedings restored.
On that same day the Commission emailed the appellant employer’s solicitors advising that there were 21 days in which to lodge any documents in response to the request for restoration.
On 9 January 2025 the appellant employer's solicitors advised the Commission that it did not oppose the proceedings being restored and on 21 January 2025 the Commission confirmed that the proceedings were restored and that there would be a medical assessment with the current Medical Assessor, Dr Hong, on 28 February 2024.
The appellant employer further advised that on 4 February 2025 the referral was amended to include Medical Assessor Gill's MAC and the accompanying COD of 26 “December” 2024. (The COD was actually dated 26 November 2024)[1].
[1] Appeal papers page 1,156.
The appellant employer noted that the 21-day period to lodge any documentation was dated from 19 December 2024 and expired on 22 January 2025, factoring in public holidays and weekends.
We were referred to Ross v Zurich Workers' Compensation Insurance[2] as authority for the proposition that additional evidence which was sought to be admitted on appeal in addition to complying with s 328(3) had to have such probative value that it was reasonably clear it would change the outcome of the case.
[2] [2002] NSWWCCPD7.
We were also referred to Petrovic v BC Serv No 14 Pty Limited and Ors.[3]
[3] [2007] NSWSC 1156 at [31].
It was submitted that the bank statements “did not constitute ‘additional relevant information’ until the MAC was received.” Further, the appellant employer submitted that it did not have sufficient time to review and lodge the bank statements before the examination on 28 February 2025 with the Medical Assessor.
It was submitted that the effect of the additional information in the form of the bank statements would change the outcome of the case as the information therein was inconsistent with Mr Holt's history regarding travel, social functioning and relationship breakdown.
It was also submitted that the interests of justice and procedural fairness necessitated the inclusion of the bank statements as they revealed inconsistencies in the worker's history given to all the qualified experts including the Medical Assessor.
The appellant employer referred to s 3 of the Personal Injury Commission Act 2020 (the 2020 Act), stating that there was a real risk that Mr Holt would receive a significantly greater amount than he was entitled to, which was inconsistent with the objects in s 3 (c) and (d) of the 2020 Act.
The bank statements, it was argued, demonstrated that Mr Holt was in Swansea from:
(a) 11 February 2023 to 25 February 2023;
(b) 10 September 2023 to 6 December 2023;
(c) 22 December 2023 to 1 January 2024, and
(d) 31 March 2024 to 30 April 2024.
These would have resulted in a different class rating being given for the travel and social functioning. Moreover, it was submitted that the bank statements would reveal inconsistencies in the histories provided to the qualified experts (Dr Anderson and
Dr Nagesh) and the Medical Assessor.
Respondent
The respondent objected to the admission of the additional evidence.
Mr Holt submitted that the appellant employer was clearly in breach of the provisions of s 327(3)(b) of the 1998 Act.
Mr Holt submitted that it did not satisfy the requirement that the fresh evidence was not available and could not reasonably have been obtained prior to the medical assessment, as on the appellant employer’s own chronology, that was clearly not the case.
In the alternative Mr Holt submitted that the statements were not of such probative value that it was reasonably clear that they would change the outcome of the assessment. Bank statements, it was submitted were not evidence of the claimant’s ability to travel or his level of social functioning. They were evidence of financial transactions at best, and, Mr Holt said, were not of such weight that it could be said that they would change the outcome of the assessment.
DISCUSSION RE ADDITIONAL EVIDENCE
This application is dismissed. Although the appellant employer gave a detailed account regarding its conduct vis-à-vis the bank statements, it was unable to explain why it failed to lodge them by the date of the assessment. Moreover, its submission that they would not constitute additional relevant information until the MAC was received was, with respect, misconceived and not an accurate reflection of the requirements of s 328(3), which provides that additional evidence may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before the medical assessment itself. The assessment occurred on 28 February 2025, at a time when the appellate employer had possession of the bank statements, and the submission that it had insufficient time to review documents is simply an admission that it was unable to comply with the terms of s 328(3).
There is no requirement in this jurisdiction to establish that the additional evidence was of such probative value that it was reasonably clear would change the outcome of the case. Ross has no application in this setting. In any event, even if that were the test, this evidence would not have satisfied it. The conclusions that were said to flow from the existence of the bank statements relied not on inference, but on speculation and conjecture.
The appellant employer also sought to rely on two screenshots from Google maps to demonstrate the distance between Cobar and Swansea (Annexure A) and between Cobar and Newcastle (Annexure B). These screenshots are also inadmissible, but as a matter of judicial notice we can accept the distances therein given as being accurate.
In his submissions regarding the category of “travel”, Mr Holt referred to a supplementary statement dated 16 April 2025 that had been attached to his submissions. This evidence also postdated the issue of the MAC on 10 March 2025, and accordingly is prima facie inadmissible, as it too offends the provisions of s 328 (3) of the 1998 Act. No submissions were made as to its admissibility, and it seems to be assumed that Mr Holt’s statement would be automatically admitted. This is not the case. Mr Holt, we assume was aware of the issues raised by the surveillance material and no explanation was forthcoming as to why it had not been answered prior to the date of the MAC.
For these reasons the application to admit additional evidence is refused.
EVIDENCE
Documentary evidence
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.
Medical Assessment Certificate
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.
SUBMISSIONS
Both parties made written submissions which have been considered by the Appeal Panel.
FINDINGS AND REASONS
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.
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.
THE MAC
The Medical Assessor noted Mr Holt’s treatment regime as follows:[4]
[4] Appeal papers page 204.
“● Present treatment:
Mr Holt took melatonin and then started transcranial magnetic stimulation treatment. He has been consulting his psychologist, Clara Fritchey every 2 weeks for 2 years now. His psychiatrist is Dr Ryan Cocker, and he had inpatient care at Warners Bay hospital, in April 2024. He said the treatment has been helpful.
He takes:
•Belsomra 20 mg at night
•Lamotrigine 100 mg morning and night
•Seroquel 50 mg at night
•Mirtazapine 60 mg
•Thyroid replacement
•Jardiamet
He reported that he was seeing the psychologist Rachel Collins and she suggested TMS, and he only saw her for 12 sessions under Medicare. I noted that she did not identify any problem with his concentration during that time.
He said after that, because of TMS with Dr Cocker, he started seeing another psychologist from the same practice as Dr Cocker.”
The Medical Assessor took the following history when investigating Mr Holt’s social activities and activities of daily living:[5]
“…Mr Holt said his relationship with his parents is good. He has not seen his eldest brother since 1988, and he has passed away now. Mr Holt said he had a good relationship with his other brother until 18 months ago. This was because he attended TMS in New Castle [sic] and did not go to his nephew and brother's combined birthday party and after that, his brother cut him off, despite his absence was due to his medical treatment. Mr Holt said he does not drive outside town and as he had to go to New Castle for TMS, his parents drove and they could not go to that party, so his brother cut his parents off as well…
….
In terms of trips away, he reported going to New Castle only.”
[5] Appeal papers page 205/206.
Surveillance reports were lodged by the appellant employer, and the Medical Assessor discussed the contents:[6]
“We discussed the surveillance material:
Mr Holt had seen that material previously and reported that he went to Newcastle for TMS, and he said Dr Nagesh had discussed his travel to Swansea in 2024, but that is where his sister lives, and he went there for TMS.
He reported that he was going to TMS Monday to Friday, and had 35 sessions.
He said that in surveillance when he was in a motel, it was where his sister had worked.
We also discussed the other activity on the 26th of January 2024 and the 13th of March 2024.
We discussed he attended the Cobar Bowling Club, and the last entries were in May 2021 and March 2022, which was before his work injury. There is no evidence of participation in any games after his injury, and I noted this is consistent with what he reported to me.
Mr Holt had been seen driving and going out, interacting with males and females, and going to IGA supermarket, purchasing takeaway food, and also evidence of him having travelled to Swansea, and again all of these activities, are consistent with what he had reported.”
[6] Appeal papers page 206.
In his summary at [7] of the MAC, the Medical Assessor said relevantly:
“Mr Holt developed chronic depression and anxiety, consistent with an Adjustment disorder and later evolved into Major depressive disorder without melancholic features, as a result of his employment, and this led to widespread impact on his social functioning and ability to enjoy recreational activities.
He has had sufficient treatment. My view is that MMI has been reached at this point.”
In discussing the evidence before him at [10c] of the MAC, the Medical Assessor noted:
“Mr Holt's statement had been noted, he said he cannot concentrate and only limited watching YouTube for about 5-10 minutes and limited driving due to poor concentration.”
At the same point in his MAC, the Medical Assessor noted the history given to
Dr Peter Anderson on 22 November 2023 that Mr Holt had been referred for TMS and had been staying with his sister and driven to Swansea for treatment. The Medical Assessor also noted the history taken by Dr Abhishek Nagesh on 9 February 2023 of Mr Holt’s travelling to Canberra with his parents for his uncle’s 80th birthday, and that Mr Holt would go to Newcastle to spend a week with his sister. The Medical Assessor also noted the report from Dr Nagesh dated 20 May 2024 in which Dr Nagesh noted that Mr Holt did not mention his trip to Swansea to him.Dr Nagesh had assessed a class 2 rating for the category of social functioning. The Medical Assessor said:
“….In terms of social functioning, Dr Nagesh acknowledged that the referrer specifically asked him to exclude tries relationship breakdown from the WPI assessment because it predates the injury and therefore assessed 2 in social functioning. In my assessment, I assessed 3 and I included that relationship breakdown as part of impairment, on the basis that the relationship breakdown was starting when the workplace bullying started. However, the relationship is did not (sic) completely end at that point. As Mr Holt's depression and anxiety increased, there were further problems with co-workers allegedly making false calls to the radio in his name, which led to the police being contacted. Subsequently, the relationship completely ended and his inability to manage his emotions was also a factor. Whilst that relation ended before the deemed date of injury, my view is that his impairment related to that relationship ending, is part of his psychological injury and therefore included in my assessment. I further noted that he no longer has contact with any friends since his injury.”
In discussing the earlier MAC by Dr Ronald Gill dated 21 October 2024, the Medical Assessor noted Dr Gill’s’ finding that maximum medical improvement had not occurred. He said:[7]
“… I noted that since the assessment, [Mr Holt’s] medication remained unchanged. He has a further psychologist and psychiatrist treatment, which may explain the improved functioning since Dr Gilles assessment. Overall, my view is that his condition is now stabilised, because he remains on the same psychotropic medications for a long time, and there is no plan for further changes or new treatment.”
[7] Appeal papers page 211.
In the Table 11.8 PIRS Rating Form, the Medical Assessor said, in giving a 1% modifier:
“Treatment effects
Whilst his psychotropic medications have not changed since Dr Gill's assessment, I accepted further psychologist and psychiatrist sessions helped improve his functioning, with mild substantially elimination of impairment, as he is no longer reliant on his parents for self-care, and his concentration is improved.”
SUBMISSIONS
Appellant employer
Travel
The appellant employer submitted that there were inconsistencies in the medical evidence regarding Mr Holt's travel. The Medical Assessor had noted that Mr Holt had anxiety and could not drive long distances on his own, although he told the Medical Assessor that he did travel to Newcastle. However, the Medical Assessor noted that the surveillance report demonstrated Mr Holt had travelled to Swansea. It could be presumed, it was submitted, that he travelled those distances without a support person, as he had not provided any evidence to that effect. The distances from Cobar were 688.2km to Swansea and 675km to Newcastle, with travel time of seven hours and 49 minutes, and seven hours and 42 minutes respectively.
Submissions were made regarding the bank statements, which we put to one side.
A consideration of the objective evidence regarding Mr Holt’s travel patterns, it was submitted, should result in a class 1 rating. This would reflect the inconsistencies shown by Mr Holt’s driving long distances when the Medical Assessor had assumed that Mr Holt was unable to drive long distances on his own.
The appellant employer acknowledged that this evidence had been discussed “briefly“ with the Medical Assessor, who had further fallen into error, it was submitted, as he had failed to provide reasons for concluding that Mr Holt was unable to travel long distances on his own in the face of the evidence of the journeys to Newcastle and Swansea. Again, the appellant employer asserted that the evidence showed that Mr Holt had a minor deficit attributable to the normal variation in the general population and ought to be reassessed with a class 1 rating.
Social functioning
The appellant employer referred to the reasons given by the Medical Assessor for allocating a class 3 rating for this category. It was submitted that in accepting that the breakdown of Mr Holt’s relationship was a behavioural consequence of his disorder, the Medical Assessor had erred. We were referred to the terms of Chapter 11.11 of the Guides in that regard. It was submitted that the breakdown was the behavioural consequence of the conduct of Mr Holt’s colleagues in placing a set of fake testicles on his vehicle, and his girlfriend’s somewhat extreme reaction. Mr Holt, it was argued, played no part in that sequence of events. Accordingly, it was argued, the relationship breakdown was not a relevant consideration in assessing Mr Holt’s social functioning.
The evidence showed that Mr Holt did not obtain a Certificate of Capacity until about five weeks after the relationship breakdown, on 6 December 2022. A number of other causative incidents and events had occurred during that time. At the time of the confrontation with his girlfriend, Mr Holt, whilst perhaps experiencing stress or emotional upset, did not suffer a psychological disorder as defined by s 11 A (3) of the 1987 Act. Alternatively, it was submitted that there was no medical evidence that established a definable psychological disorder on or shortly after the break up.
Thus it was submitted that the Medical Assessor erred in assuming that an event which likely predated the onset of his psychological disorder was a relevant behavioural consequence of his psychological disorder, which had not then manifested or been diagnosed.
Further submissions were made about the effect of the bank statements, which we again put to one side, having found them to be inadmissible.
Treatment effects
The appellant employer referred Zoric v Secretary, Department of Education & ors[8] as authority for the proper application of Chapter 1.32 of the Guides relating to modification that is available for the effects of treatment.
[8] [2024] NSWSC 131.
The Medical Assessor’s adjustment in this regard was, it was submitted, at odds with the evidence before him, which did not justify the modification he made, neither did he provide adequate reasoning for doing so.
Respondent Mr Holt
Travel
Mr Holt submitted that the class 2 rating in this category was appropriate. He referred to his supplementary statement, which we have rejected, and he referred to the transactions recorded in his bank statements, which we have also rejected.
As to the alleged inconsistency of him being able to travel by himself to Newcastle and Swansea, Mr Holt referred to the comments by the Medical Assessor regarding Mr Holt’s activities as observed in the surveillance material, that they had been consistent with what Mr Holt had reported. The Medical Assessor had made no incorrect assumptions, it was submitted.
Social functioning
Mr Holt again referred to his supplementary statement and the evidence of the bank statements, which again we put to one side.
Mr Holt submitted that the Medical Assessor had provided a clear path of reasoning regarding the cause of the relationship breakdown, and the explanation by the Medical Assessor was reproduced. Regardless of the Medical Assessor’s explanation concerning causation, Mr Holt submitted that the classification was justified. He referred to the findings by the Medical Assessor as to his restrictions in this category. Moreover, the Medical Assessor had given adequate reasons as to the involvement of Mr Holt’s relationship break up, and had indeed described way he did not agree with the assessment made by Dr Nagesh.
Treatment effects
Mr Holt submitted that a clear path of reasoning had been given in this respect as well, and had fully particularised his treatment to date. In any event, had the Medical Assessor not made an allowance for the effect of treatment, Mr Holt’s entitlement would not be affected.
DISCUSSION
The psychiatric impairment rating scale (PIRS)
The PIRS is established as the rating system for assessing psychiatric/psychological impairment, by virtue of Chapter 11 of the Guides. Chapter 11 sets out six categories of behaviour to be considered, each being divided into five classes, ranging in seriousness from 1 to 5. Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired.
Chapter 11.12[9] provides:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
[9] Guides page 55.
The assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11.[10].
[10] See 11.15-11.21 at Guides page 65 and Table 11.7 at Guides page 66.
The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[11] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the AMS had been glaringly improbable. His Honour found that the Panel had fallen into jurisdictional error. He said at [23]:
“By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:
‘… the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’.
24. The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
25. The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales[12]. The Appeal Panel said ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’: Appeal Panel reasons at [37].”
[11] [2017] NSWSC 887.
[12] [2015] NSWSC 633.
In Glenn William Parker v Select Civil Pty Ltd,[13] another case regarding assessment of psychiatric disorder, Harrison AsJ cited [23] of Ferguson with approval at [65]. Her Honour said at [66]:
“In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense. (Ferguson [24])…..”
[13] [2018] NSWSC 140.
In Jenkins Garling J said at [73]:
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
It is accordingly necessary for the Panel to be satisfied that the assessment by the AMS in this category was erroneous in one of the following ways (to use the reference by Campbell J in Ferguson):
(a) if the categorisation was glaringly improbable;
(b) if it could be demonstrated that the AMS was unaware of significant factual matters;
(c) if a clear misunderstanding could be demonstrated; or
(d) if an unsupportable reasoning process could be made out.
In Lancaster v Foxtel Management[14] Basten AJ noted at [88-89] that these four considerations, although not inaccurate, were not a statement of legal principles, and that care should be taken in applying the explanation in place of s 327(3) and s 328(2).
[14] [2022] NSWSC 929.
The tension between these descriptors in the many different possible scenarios within the six categories of the PIRS and the classifications thereof, appears to be the basis for the reservation in Chapter 11.12 that the descriptors are intended to be non-binding examples, giving a general guide to the level of the behavioural consequences of the particular psychiatric disorder, and thus allowing a wider discretion to be applied than if the descriptors were intended to be strict criteria.
Travel
The first challenge to the MAC relates to the PIRS category of travel. The Medical Assessor rated a class 2, mild impairment, which the appellant employer submitted should be a class 1. The basis of that contention concerns the fact that Mr Holt engaged in travelling long distances from Cobar to Newcastle and Swansea.
Table 11.3 of the Guides provides relevantly:
Class 1 No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision.
Class 2 Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.
In his Table 11.8 PIRS Rating Form the Medical Assessor gave the following reasons:
“Mr Holt has anxiety and cannot drive long distances on his own.”
Those reasons need to be considered in the light of the findings by the Medical Assessor in the body of the MAC. As shown above, he firstly recorded that Mr Holt had gone to Newcastle only, “in terms of trips away.” He then recorded that Mr Holt said he also travelled to Swansea for treatment in the form of Transcranial Magnetic Stimulation (TMS), and that he had 35 sessions over the course of a number of weeks, from Monday to Friday, of that treatment.
The surveillance material consisted of a “Desktop Investigation Report” dated
25 January 2024.[15] It related that a post had been found on social media that Mr Holt had been in Swansea around October 2023, visiting his sister.[15] Appeal papers page 546.
We were not referred to the evidence surrounding the administration of the Transcranial Magnetic Stimulation treatment and a search through the material demonstrated that
Mr Holt underwent that treatment in 2023 under the auspices of “Monarch Mental Health Group” and consultant psychiatrist Dr Ryan Cocker, whose address is shown as being in York Street Sydney. On 20 October 2023 Dr Cocker advised Mr Holt’s GP in Cobar that Mr Holt was receiving transcranial magnetic stimulation and had received 28 administrations at that point.[16][16] Appeal papers page 345.
As noted, Dr Peter Anderson was the expert retained on behalf of Mr Holt. He reported on 22 November 2023 and stated:[17]
“At the time of examination your client was located at Swansea near Newcastle at his sisters address . He explained that he had just completed a seven week course of transcranial magnetic stimulation in the care of Dr Cocker, psychiatrist of the Monarch Group. He was soon to return to Cobar where he currently lives with his mother and father. He was waiting for his father to collect and make the trip home ….”
[17] Appeal papers page 239.
The submissions made by the appellant employer were accordingly made on very little supporting evidence, and it made quite expansive assumptions which have not been established. Such little contemporaneous evidence as there is shows that Mr Holt did travel in November 2023 with his father, that is to say, with a support person.
We decline, with respect, to find that the Medical Assessor has made a clear error of fact or failed to properly consider relevant information. The Medical Assessor was not obliged to provide reasons for his conclusion that Mr Holt could not drive long distances on his own, as there was no evidence that he had done so.
Social functioning
We noted the appellant employer’s submission regarding the social functioning assessment with some interest. The argument was constructed by reference to Chapter 11.11 of the Guides and s 11A(3) of the 1987 Act.
Chapter 11.11 provides:
“11.11 Behavioural consequences of psychiatric disorder are assessed on six scales, each of which evaluates an area of functional impairment:
1. Self care and personal hygiene (Table 11.1)
2. Social and recreational activities (Table 11.2)
3. Travel (Table 11.3)
4. Social functioning (relationships) (Table 11.4)
5. Concentration, persistence and pace (Table 11.5)
6. Employability (Table 11.6)”
Section 11A(3) of the 1987 Act provides:
“(3) A ‘psychological injury’ is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.”
Table 11.4 of the Guides states:
“Class 2 Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Class 3 Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”
The reasons given by the Medical Assessor in the Table 11.8 PIRS Rating Form were:
“Mr Holt’s relationship with his partner ended partly as a result of his psychological injury, as his anxiety and depressive symptoms were increasing in the context of work stress and several work-related factors caused him distress and led to the relationship ending. He is anxious and socially avoidant, and ceased contact with all of his friends. The relationship with his general family is reasonable.”
The appellant employer’s argument was based on the proposition that the breakdown in Mr Holt’s relationship could not be seen as a “behavioural consequence” of Mr Holt’s disorder, as it occurred in circumstances beyond Mr Holt’s control, and occurred at time before his psychological disorder had manifested itself. The appellant employer referred to the comment made by the Medical Assessor when commenting on Dr Nagesh’s opinion, which we reproduced above at [57] above. Dr Nagesh had said in his report of 20 May 2024:[18]
“…My rationale is the claimant was separated from his partner before his psychological injury.…”
[18] Appeal papers page 1108; report from page 1,093.
The Medical Assessor disagreed, and gave the following reasons for doing so. He said, to repeat:
“In terms of social functioning, Dr Nagesh acknowledged that the referrer specifically asked him to exclude tries [sic- his] relationship breakdown from the WPI assessment because it predates the injury and therefore assessed 2 in social functioning. In my assessment, I assessed 3 and I included that relationship breakdown as part of impairment, on the basis that the relationship breakdown was starting when the workplace bullying started. However, the relationship is did not [sic] completely end at that point. As Mr Holt's depression and anxiety increased, there were further problems with co-workers allegedly making false calls to the radio in his name, which led to the police being contacted. Subsequently, the relationship completely ended…. Whilst that relation ended before the deemed date of injury, my view is that his impairment related to that relationship ending, is part of his psychological injury and therefore included in my assessment.”
The appellant employer’s argument assumes that events that occurred prior to the onset of a claimant’s diagnosis of a psychological condition are not “behavioural consequences” within the description given by Chapter 11.11 of the Guides. Such is self -evident, so that if Mr Holt had been assessed on 4 November 2022, the day after his girlfriend had refused to return his set of keys, it could not be said that he had suffered a psychological injury as defined by s 11A(3) at that point. However, the assessment of any injury is not predicated on such an approach.
Chapter 1.6a of the Guides provide relevantly:
“1.6 The following is a basic summary of some key principles of permanent impairment assessments:
a. Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant’s relevant medical history and all available relevant medical information….” (Emphasis added).
The appellant employer, with respect, has conflated the concept of injury with impairment. We disagree with the submission that the relationship breakdown was not part of the injury in any event. The breakdown of Mr Holt’s relationship would not have occurred had his colleagues not placed two artificial testicles on the bull bar of his vehicle which, perhaps unreasonably, upset his girlfriend. It was this action by his colleagues that set the disintegration of Mr Holt’s mental condition in train. It was nothing to the point that the girlfriend may have overreacted. What was relevant was that the actions of Mr Holt’s colleagues, in placing the artificial testicles on his car, started the sequence of events that resulted in Mr Holt’s injury.
As Mr Holt presented to the Medical Assessor on 28 February 2025, the Medical Assessor was entitled to include, in considering the cause of Mr Holt’s subsequent behaviour, the breakdown of his relationship.
The behavioural consequences of a psychiatric disorder are assessed on the PIRS and are assessed at the time of the consultation, not at any earlier time. We note that the focus of the subsequent bullying and inappropriate behaviour by Mr Holt’s colleagues may indeed have been based on the overreaction of his girlfriend. The relationship between her and Mr Holt seemed to have already been established, and the bull bar culprits may well have intended no more than a joke about that. The girlfriend’s somewhat extreme behaviour may well have unfortunately prompted the subsequent ribaldry over the radio.
Accordingly, the Medical Assessor did not err in the moderate rating he assessed, in including the relationship breakdown.
Treatment effect
We are, however, unable to confirm the assessment regarding treatment effects. The Medical Assessor allowed a further 1% WPI on the following basis:[19]
“Whilst his psychotropic medications have not changed since Dr Gill’s assessment, I accepted further psychologist and psychiatrist sessions helped improve his functioning, with mild substantially elimination of impairment, as the is no longer reliant on his parents for self-care, and his concentration is improved.”
[19] Appeal papers page 214.
Chapter 1.32 of the Guides provides:
“1.32 Where the effective long-term treatment of an illness or injury results in apparent substantial or total elimination of the claimant’s permanent impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%. This percentage should be combined with any other impairment percentage, using the Combined Values Chart. This paragraph does not apply to the use of analgesics or anti-inflammatory medication for pain relief.”
We note that there is no provision in Chapter 1.32 of the Guides for a ‘mild substantial elimination’, which, in itself is something of a conundrum, as something cannot logically be both ‘mild’ and ‘substantial.’ Further, it is difficult to conceive of a ‘mild’ elimination.
In his MAC of 21 October 2024, Dr Ronald Gill found that Mr Holt had not achieved maximum medical improvement. Dr Gill advised:[20]
“At this stage, it cannot be determined that Mr Holt’s impairment is permanent. His condition is acute, and he has not reached MMI. There is a clear potential for improvement if further treatment options are explored, such as ECT or esketamine…..
…. Further treatments are available that could improve his psychiatric state, and it is necessary to wait until MMI is reached before providing a definitive assessment…”
[20] Appeal papers page 1,154.
The Medical Assessor referred to Mr Holt’s present treatment, which we have reproduced above at [51]. Mr Holt was already seeing a psychologist and a psychiatrist, and the explanation that further psychologist and psychiatrist had helped improve Mr Holt’s functioning was not adequate to explain what the nature of that treatment had been in the light of Dr Gill’s recommendations that additional treatment options such as ECT or esketamine be explored which, in the light of the treatment described at [51] above, appears to have not taken place.
In Zoric, Chen J considered the elements of this clause. He said, from [59]:
“59. The clause may thus be understood to involve, and require findings about, the following ‘steps’:
(1) First, whether there has been effective long-term treatment of an illness or injury.
(2) Secondly, whether that treatment results in apparent substantial or total elimination of the claimant’s permanent impairment.
(3) Thirdly, whether the claimant is likely to revert to the original degree of impairment if treatment is withdrawn.”
It can be seen that the Medical Assessor did not adequately address any of these steps. We will therefore revoke the MAC in this respect.
For these reasons, the Appeal Panel has determined that the MAC issued on
10 March 2025 should be revoked, and a new MAC should be issued. 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: | W25577/24 |
Applicant: | Bourke Shire Council |
Respondent: | Daniel Holt |
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 Michael Hong 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-total/s % WPI (after any deductions in column 6) |
| Psychological | 5 December 2022 | Chapter 11 pp 55 – 60 | 15 | nil | 15 | |
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
0
7
0