Cheong v W Retail Pty Ltd ATF W Retail Unit Trust
[2025] NSWPICMP 527
•18 July 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Cheong v W Retail Pty Ltd ATF W Retail Unit Trust [2025] NSWPICMP 527 |
| APPELLANT: | Koi Tim Cheong |
| RESPONDENT: | W Retail Pty Ltd ATF W Retail Unit Trust |
| APPEAL PANEL | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 18 July 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appeal by worker on basis that Medical Assessor (MA) incorrectly added all of the psychiatric impairment rating scale (PIRS) ratings when assessing whole person impairment (WPI); respondent employer conceded that the MA had erred and the assessment should be 17% WPI; appeal by respondent employer on basis of error in assessing class 3 for travel and class 3 for concentration persistence and pace and failing to apply a deduction for the secondary psychological injury; Appeal Panel satisfied that there was an error in the assessment of travel, no error in assessment of concentration, persistence and pace and a failure to provide adequate reasons to explain how the secondary psychological injury impacted or did not impact on the assessment of impairment; worker re-examined; Held – MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 6 March 2025 Koi Tim Cheong (Mr Cheong) lodged an Application to Appeal Against the Decision of a Medical Assessor (M1-W 29350/24). The medical dispute was assessed by Dr Yu Tang Shen, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 18 February 2025.
On 11 March 2025 W Retail Pty Ltd ATF W Retail Unit Trust (W Retail) lodged an Application to Appeal Against the Decision of a Medical Assessor (M2-W29350/24). The medical dispute was assessed by Dr Yu Tang Shen, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 18 February 2025.
In M1-W 29350/24 Mr Cheong relies on the following ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the MAC contains a demonstrable error.
In M2-W 29350/24 W Retail relies on the following grounds of appeal under s 327(3) of the 1998 Act:
· 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 in each matter. 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.
The delegate convened this Medical Appeal Panel to deal with both appeals.
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).
RELEVANT FACTUAL BACKGROUND
Mr Cheong suffered an injury deemed to have occurred on 6 June 2022 in his employment as a chef with W Retail.
The appellant lodged an Application to Resolve a Dispute in the Personal Injury Commission (Commission) dated 29 November 2024 in which he claimed lump sum compensation in respect of the psychiatric injury.
The Medical Assessor examined the appellant on 10 February 2025 and assessed 13% whole person impairment (WPI) in respect of a psychiatric condition as a result of the injury deemed to have occurred on 6 June 2022.
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.
W Retail requested that Mr Cheong be re-examined by a medical member of the Appeal Panel. W Retail submits that a re-examination is necessary as the Medical Assessor has recorded inconsistent comments regarding the Mr Cheong’s current functioning as well as accounting for the secondary psychological injury component.
As a result of that preliminary review, the Appeal Panel determined that Mr Cheong should undergo a further medical examination because there was a demonstrable error in the MAC and insufficient information on which to make a determination.
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.
Further medical examination
Medical Assessor Hong of the Appeal Panel conducted an examination of Mr Cheong on
8 July 2025 and reported to the Appeal Panel.
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. They are not repeated in full but have been considered by the Appeal Panel.
M1-W29350/24
Mr Cheong’s submissions include the following:
(a) Ground 1 - the Medical Assessor made a demonstrable error pursuant to
s 327(3)(d) of the 1998 Act by incorrectly adding all the class descriptors or “ratings” when assessing WPI;(b) it is clear the Medical Assessor in the MAC failed to add all Psychiatric Impairment Rating Scales (PIRS) for the aggregate scores when he assessed WPI;
(c) on page 12 of the MAC the Medical Assessor only adds five PIRS ratings and obtained an aggregate score of 14 when he should have also included the sixth PIRS category and awarded an aggregate score of 16. In the Guidelines at chapter 11 table 11.7 it is clear the WPI should be 17% WPI, and
(d) the MAC of 18 February 2025 should be amended/set aside as a demonstrable error has been shown in the calculation of WPI. The Appeal Panel should substitute a WPI of 17% for the 13% currently on page 12 of the MAC.
W Retail’s submissions include the following:
(a) Ground 1 – the Medical Assessor erred in his calculation of the assessment of WPI in accordance with his PIRS assessment categories;
(b) the Medical Assessor recorded in the PIRS assessment table that Mr Cheong had been assessed as a Class 2 impairment for self-care and personal hygiene, a Class 3 impairment for social and recreational activities, a Class 3 impairment for travel, a Class 2 impairment for social functioning, a Class 3 impairment for concentration, persistence and pace, and a Class 3 impairment for employability;
(c) based on the above, W Retail says the Medical Assessor ought to have provided a total assessment of 17% WPI based on the current PIRS categories assessed, and
(d) W Retail submits that the Medical Assessor’s assessment is unreliable for the above reasons and should be amended if the W Retail’s appeal is not granted.
M2-W29350/24
W Retail’s submissions include the following:
(a) Ground 1 - The Medical Assessor made a demonstrable error pursuant by incorrectly adding all the class descriptors or “ratings” when assessing WPI;
(b) the Medical Assessor failed to add all PIRS ratings for the aggregate scores when he determined the appellant’s WPI in the MAC;
(c) Ground 2 – travel - the Medical Assessor erred in assessing class 3 impairment for the PIRS category of travel;
(d) the Medical Assessor recorded that Mr Cheong is unable to drive based on his doctor’s advice to not drive on his medication. He relies on taxis, his wife and friends to take him to appointments;
(e) Mr Cheong’s inability to drive was not due to the psychological injury but rather due to medication use. The Medical Assessor does not specify if this medication is for Mr Cheong’s physical or psychological injuries. As such, failure to specify this is also an error;
(f) the Medical Assessor has not indicated that Mr Cheong is unable to travel away from his residence without a support person, noting that he is able to utilise taxis as a method of transport. He also does not state that this occurs with a support person. The Medical Assessor’s comments support that Mr Cheong is able to travel to appointments in familiar areas without a support person;
(g) the Medical Assessor’s comments do not support the finding of class 3 impairment in the category of travel. The Medical Assessor’s description of Mr Cheong’s current abilities with regards to travel is not consistent with a finding of a Class 3 impairment for travel;
(h) the Medical Assessor ought to have given a lower assessment for the category of travel. An assessment of class 2 impairment is more appropriate based on the Guidelines;
(i) Ground 3 - concentration, persistence and pace - the Medical Assessor erred in assessing class 3 impairment for concentration, persistence and pace;
(j) the Medical Assessor recorded that Mr Cheong is capable of watching television for 30 minutes and that Mr Cheong was alert, appeared grossly cognitively intact and maintained concentration for the assessment. The Medical Assessor has not taken into account the Guidelines when considering this category and his presentation during the assessment;
(k) Mr Cheong’s ability to watch television for 30 minutes and sit through the Medical Assessor examination with no issues, is more in line with a class 2 impairment. The Medical Assessor does not indicate that Mr Cheong is unable to read, follow complex instructions, fix things or type long documents as noted in the Guidelines for a class 3 impairment;
(l) the Medical Assessor’s comments do not support the finding of class 3 impairment in concentration, persistence and pace. The assessment of class 3 impairment is not in line with the evidence available, the history taken and the Guidelines. A class 2 impairment is a more appropriate assessment for concentration, persistence and pace;
(m) Ground 4 - Failure to apply a deduction for the secondary psychological injury and adequate reasons on same. The Medical Assessor erred in failing to account for the secondary psychological condition in the assessment of WPI as well as failing to provide adequate reasons on this issue;
(n) the Medical Assessor indicated in the MAC that both Independent Medical Examiners (IME), Dr Saboor and Dr Bisht, had accounted for Mr Cheong’s secondary psychological injury in their assessments in respect of pain from his physical injuries. The Medical Assessor indicated that he agreed with the IMEs taking into account Mr Cheong’s secondary psychological injury in their assessments. However, the Medical Assessor then indicates that when the secondary psychological injury was taken into account, it did not change his overall assessment of WPI;
(o) the evidence in the ARD and Reply details that Mr Cheong was diagnosed with a somatic symptom pain disorder by his psychologist, Mr Leung. His GP, Dr Wong also noted that Mr Cheong had a deterioration of his mental health after his physical injuries persisted;
(p) the Medical Assessor failed to provide reasons on how his assessment remained the same if he was to consider the secondary psychological injury in his assessment. The lack of reasons makes it difficult to ascertain how the Medical Assessor reached his conclusion on this issue;
(q) as stated in Campbelltown City Council v Vegan & Ors [2006] NSWCA 284, Basten JA determined that where more than one conclusion is open, it will be necessary for the Panel to give some explanation of its preference for one conclusion over another. On this basis, the Medical Assessor ought to have given a more expansive explanation as to why he did not consider that the secondary psychological injury impacted his assessment, whilst both IMEs did. Whilst a MAC is to be given a beneficial construction (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6), this does not mean that any ambiguity in a Medical Assessor’s reasoning, including the lack of reasoning, should allow a matter to be determined in the Medical Assessor’s favour (SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9);
(r) the failure to apply a deduction for the secondary psychological injury and discuss the issue in more depth or provide sufficient reasons to support his decision, is a demonstrable error, and
(s) the MAC dated 18 February 2025 should be revoked and Mr Cheong should be assessed by a Medical Assessor who is a member of the Appeal Panel.
Mr Cheong’s submissions include the following:
(a) Ground 1 – relates to the mathematical error in M1-W 29350/24;
(b) Grounds 2 and 3 - is on the basis the PIRS classes in two PIRS categories are too high.
(c) in respect of travel, there is no reason on the history the Medical Assessor took to decrease the rating from 3 to 2. The Medical Assessor set out his reasons for a class 3 rating and there is no reason not to accept the Medical Assessor’s ’s rating which is consistent with the definition of a class 3 rating in clause 11 of the Guidelines. Just because the Dr Bisht finds a Class 2 does not mean there is an error in the Medical Assessor’s assessment;
(d) similarly, in persistence, pace and concentration, W Retail’s submission that the rating be reduced from 3 to 2 just because Dr Bisht assessed this PIRS category differently does not mean there should be a decrease in the class found;
(e) Ground 4 – W Retail submits that there was a failure to deduct the effects of a secondary psychiatric injury. The Medical Assessor took a full history in the MAC and made his assessment of the PIRS categories that resulted from the primary psychiatric injury. Unlike s 323 there is no need to do a mathematical reduction for a secondary injury, only to take it into account which the Medical Assessor has done.
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 Appeal Panel reviewed the history recorded by the Medical Assessor, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
M1 - W29350/24
Ground 1 - Failure to add all six PIRS class descriptors
Mr Cheong submits that the Medical Assessor made a demonstrable error by incorrectly adding all the class descriptors or “ratings” when assessing WPI.
W Retail consents to the Appeal proceeding in M1-W29350/24 and to the WPI assessment being amended in the MAC.
The Appeal Panel agrees that it is clear from the MAC of 18 February 2025 the Medical Assessor failed to add all of the PIRS ratings for the aggregate scores when he determined Mr Cheong’s WPI. On page 12 of the MAC, the Medical Assessor only added five PIRS ratings and obtained an aggregate score of 14, when he should have also included the sixth PIRS category and obtained a correct aggregate score of 16.
Applying Table 11.7 in the Guidelines, the WPI is therefore clear the WPI should be 17% WPI. This ground of appeal is made out.
M2 - W29350/24
Ground 2 - Travel
W Retail submits that Medical Assessor’s comments do not support the finding of class 3 impairment in the category of travel. W Retail argues that the Medical Assessor’s description of Mr Cheong’s current abilities with regards to travel is not consistent with a finding of a class 3 impairment for travel and the assessment of class 2 impairment is more appropriate based on the Guidelines.
The examples under Table 11. 3 for “Travel” in the Guidelines are:
“Class 2: Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.
Class 3: Moderate impairment: cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment.”
Clause 11.11 of the Guidelines classified travel as an activity of daily living.
The Medical Assessor assessed the appellant as class 3 for travel. In the PIRS Rating Form, the Medical Assessor wrote:
“Travel - Class 3
He said he has not been driving at his doctor’s advice as he has been on medication, and he has been relying on the taxi, his wife or his friends to take him to
his appointments. As he has not been driving, but going out with his wife
or friends, he has moderate impairment.”
Under “Social activities/ADL” the Medical Assessor noted that after an argument with his wife, Mr Cheong “sometimes leaves the house, up to a day and he will return home late in the day”.
Dr Saboor, consultant psychiatrist, in a report dated 3 September 2024 assessed a class 3 for travel. He provided the following reasons:
“He reported that he could not go anywhere without requiring a support person. His wife was taking him to local shops and his appointments which contributed to arguments with his wife as his wife was frustrated with him”.
Dr Saboor noted that Mr Cheong reported he only drove his car when his wife was beside him and that he has not travelled since the injury.
In a report dated 18 October 2024, Dr Bisht noted:
“In terms of travel and mobility, Koi Tim told me that he rarely leaves the house, as he feels isolated, withdrawn, and unable to trust others. He said he has been able to
travel to familiar places on his own, but not unfamiliar places, due to his anxiety and
hypervigilance. Koi Tim also explained that he avoids driving, as it worsens his physical pain”.
In a report dated 18 November 2024, Dr Bisht assessed a class 2 for travel. He provided the following reasons:
“The client likely cannot travel without support person, if he is travelling to unfamiliar places. But the client would be able to travel to familiar places on their own, from a psychiatric perspective. His inability to travel on his own anywhere currently is in large part due to the physical injuries as well.”
W Retail submitted that evidence supports an assessment of class 2 for travel.
The Appeal Panel noted that Dr Saboor assessed a class 3 for travel while Dr Bisht assessed class 2 for travel.
Based on the evidence before the Appeal Panel, and for the reasons provided by the Medical Assessor in the MAC, the assessment by the Medical Assessor of class 3 for travel is inconsistent with the history taken by the Medical Assessor, namely, Mr Cheong can occasionally leave his home by himself, and travel by taxi or leave the house after an argument with his wife. The fact that Mr Cheong did not like to leave home and was anxious did not detract from the fact that he was capable of going out on his own and did so in his local area.
The Appeal Panel was satisfied that there was a demonstrable error in the MAC in relation to the ratings in the PIRS category of travel and the assessment in this class was made on the basis of incorrect criteria. This ground of appeal is made out.
Ground 3 - Concentration, persistence and pace
W Retail submits that the Medical Assessor’s comments do not support the finding of class 3 impairment in concentration, persistence and pace. W Retail submits that the Medical Assessor’s history is not in line with the PIRS assessment for a class 3 impairment and would be better suited to a class 2 impairment.
The examples under Table 11.5 for “concentration, persistence and pace” in the Guidelines are:
“Class 2: Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.
Class 3: Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (e.g. operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”
The Medical Assessor assessed the appellant as class 3 for concentration, persistence and pace. In the PIRS Rating Form, the Medical Assessor wrote:
“Concentration, persistence and pace - Class 3.
Since the subject injury, he said his concentration has been poor, and he has been struggling to comprehend watching TV. He said he can watch TV for up to 30 minutes before feeling uncomfortable. He was alert, appeared grossly cognitively intact and was able to sustain his concentration for the duration of the assessment. As he has significant poor concentration, but not noticeable in a brief conversation, he has moderate impairment.”.
Under “Findings on Physical Examination” the Medical Assessor wrote:
“He presented as a casually dressed and reasonably groomed man. He had an average build and appeared to be his stated age. He engaged cordially in the assessment and provided relevant answers to questions asked.
He told me he was feeling depressed most of the time, and anxious.
He displayed limited emotional reactivity and appeared predominantly dysthymic during the interview.
He spoke articulately in Cantonese, and in a logical sequence most of the time, without much prompting.
He had ongoing complaints of pain his neck.
He had pessimistic thoughts of guilt, and suicidal ideations with no current plans, though he has thoughts of jumping off the balcony when distressed.
He was alert, appeared grossly cognitively intact and was able to sustain his concentration for the duration of the assessment”.When commenting on the assessments by Dr Saboor and Dr Bisht, the Medical Assessor noted:
“My opinion is between the WPI of both Drs Saboor and Bisht.”
Dr Saboor assessed class 3 for concentration, persistence and pace providing the following reasons:
“He reported his concentration was very bad, his memory was very bad, he was very forgetful, and he could not remember anything”.
In a report dated 18 October 2024, Dr Bisht wrote:
“In terms of his concentration and focus, Koi Tim described that he has not improved and is still experiencing a marked deficit in his functioning. He told me he finds it very difficult to undertake detail-oriented tasks or maintain focus on tasks for more than a few minutes. He told me that he has quit attending English language classes, as he no longer has the attention-span and focus required to sustain learning a language. He told me that he cannot speak English well, in order to take part in the community. Koi Tim explained that his inability to keep up with his English language training has caused him to feel more hopeless and worried about securing another job in the future”.
In a report dated 18 November 2024, Dr Bisht assessed a class 3 for concentration, persistence and pace. He provided the following reasons:
“The client is unable to read more than a few lines persistence and pace before losing concentration. The client was able to sustain concentration throughout the course of the interview with me”.
W Retail submits that the Medical Assessor recorded that Mr Cheong is capable of watching television for 30 minutes and that Mr Cheong was alert, appeared grossly cognitively intact and maintained concentration for the assessment. The Medical Assessor has not taken into account the Guidelines when considering this category and his presentation during the assessment.
W Retail argues Mr Cheong’s ability to watch television for 30 minutes and sit through the Medical Assessor examination with no issues, is more in line with a class 2 impairment. The Medical Assessor does not indicate that Mr Cheong is unable to read, follow complex instructions, fix things or type long documents as noted in the Guidelines for a class 3 impairment.
The Appeal Panel notes that the Medical Assessor reported that Mr Cheong was alert, appeared grossly cognitively intact and was able to sustain his concentration for the duration of the assessment. The Appeal Panel infers from this report that the Medical Assessor was satisfied that the appellant was able to attend, persist, understand and comprehend and engage in the interview in such a manner to suggest a moderate impairment in this scale,
The Appeal Panel accepts that the Medical Assessor noted that Mr Cheong said his concentration has been poor, and he has been struggling to comprehend watching TV. Further, the Medical Assessor noted that Mr Cheong said he can watch TV for up to 30 minutes before feeling uncomfortable. The Medical Assessor considered that as Mr Cheong has significant poor concentration, but not noticeable in a brief conversation, he had moderate impairment. Dr Bisht noted that Mr Cheong was unable to read more than a few lines persistence and pace before losing concentration.
W Retail submits that the Medical Assessor’s comments do not support the finding of class 3 impairment in concentration, persistence and pace and the assessment of class 3 impairment is not in line with the evidence available, the history taken and the Guidelines.
Based on the evidence before the Appeal Panel, and for the reasons provided by the Medical Assessor in the MAC, the assessment by the Medical Assessor of class 3 for concentration, persistence and pace is not inconsistent with the history taken by the Medical Assessor, namely, Mr Cheong has poor concentration and struggles to comprehend watching TV.
The Appeal Panel was not satisfied that there was a demonstrable error in the MAC in relation to the ratings in the PIRS category of concentration, persistence and pace and the assessment in this class was not made on the basis of incorrect criteria. Both Dr Bisht and Dr Saboor assessed class 3 for concentration, persistence and pace. The Medical Assessor is entitled to form his own clinical judgment on the day of assessment and having had due regard to the other medical opinions before him. This ground of appeal is not made out.
Failure to deduct effects of secondary psychological injury
W Retail submits that the Medical Assessor failed to provide a deduction for the secondary psychological injury as well as adequate reasons to explain how Mr Cheong’s secondary psychological injury impacted or did not impact the assessment. W Retail submits that this amounts to a demonstrable error.
When commenting on the assessment by Dr Saboor and Dr Bisht, the Medical Assessor noted:
“My opinion is between the WPI of both Drs Saboor and Bisht. While I agree that there has been some contribution to his impairment by his pain, I think even with that taken into account, his WPI was 13%. My reasoning can be found in the PIRS worksheet”.
Dr Sylvia Wong, general practitioner, in a report dated 10 March 2022 noted that Mr Cheong’s neck pain had affected his mental health.
In a report dated 9 October 2020, Dr Charles Chan, treating psychiatrist, noted that he requested Mr Cheong to see Dr Yi Ching Lee, a Chinese speaking pain specialist, and Adrian Brezniak, physiotherapist, with experience in chronic pain management.
In a report dated 6 May 2022, Dr Chan made a clinical assessment of major depression and chronic pain following work injuries.
Dr Saboor, in a report dated 3 September 2024, noted under “History of injury” that Mr Cheong reported that he was working until he was terminated from work. Dr Saboor expressed the opinion that there was a combination of primary and secondary psychological injury and allowed 30% deduction for the effect of the secondary psychological injury.
Dr Bisht in a report dated 18 October 24 wrote:
“I do consider the worker's employment to have been a substantial contributing factor
to the frank psychological injury. The stress caused by the pain and restrictions due
to the physical injuries, as well as the stress caused by the harassment from his employer, were both equally contributory to his psychiatric condition”.Dr Bisht assessed impairment from PIRS table as 17% WPI. Dr Bisht made no deduction for pre-existing impairment. Dr Bisht wrote”
“The injury is a combination of a primary injury as a result of the perceived harassment and secondary to the worker's physical injuries sustained at the workplace, as the worker has continued to suffer from substantial ramifications of the physical injury, despite extensive treatment.
Considering the ongoing ramifications of the physical injury, including chronic pain and restrictions, I would conclude that the proportionate contribution of the two components i.e. primary and secondary injury, is 50 percent each.
Hence the impairment due to primary work related injury is 9% (rounded off from
8.5%).”Section 65A of the Workers Compensation Act 1987 (the 1987 Act) provides:
“65A Special provisions for psychological and psychiatric injury
(1) No compensation is payable under this Division in respect of permanent impairment that results from a secondary psychological injury.
(2) In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.
…
(5) In this section—
primary psychological injury means a psychological injury that is not a secondary psychological injury.
psychological injury includes psychiatric injury.
secondary psychological injury means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.”The Guidelines at 1.22 provide:
“1.22 A primary psychiatric condition is distinguished from a secondary psychiatric or psychological condition, which arises as a consequence of, or secondary to, another work related condition (eg depression associated with a back injury). No permanent impairment assessment is to be made of secondary psychiatric and psychological impairments. As referenced in [the] section [headed] Multiple impairments, impairments arising from primary psychological and psychiatric injuries are to be assessed separately from the degree of impairment that results from physical injuries arising out of the same incident. The results of the two assessments cannot be combined.”
In Mercy Connect Ltd v Kiely [2018] NSWSC 1421 (Keily No 2) Harrison AJ in obiter dicta set out a two step process by which a Medical Assessor could apply the provisions of s 65A(2) of the 1987 Act to have no regard to impairment or symptoms from a secondary psychological injury. Her Honour said:
“96. The statutory scheme comprising of the WIM Act and the Workers Compensation Act creates a two-step approach in assessing the degree of WPI for a psychological injury. The assessor must first calculate the entire degree of psychological injury in line with the PIRS categories. The secondary psychological injury must then be assessed and deducted in accordance with s65A of the Workers Compensation Act, leaving the primary psychological injury remaining.
97. This two-step process accords with the referral of the Workers Compensation Commission on 24 October 2016. This referral provided for the AMS to assess the degree of WPI arising out of the primary psychological injury sustained by Ms Kiely as a result of the incident, excluding ‘any impairment or symptoms arising from or attributable to, the secondary psychological condition’.”
Basten AJ in Matheson v Baptistcare NSW & ACT [2025] NSWSC 213 (Matheson) recently considered how to treat the assessment of the secondary psychological injury. At [50] he wrote:
“As can be seen from s 65A(2), impairment resulting from a secondary psychological injury is not so much a basis for a deduction as a matter to be disregarded in assessing the permanent impairment resulting from the primary psychological injury. One consequence of this approach is that both must be assessed on the correct basis, namely by application of the Guidelines”.
And at [55]
“In stating that “no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury”, s 65A(2) is badly worded: it does not require the medical assessor to have no regard to such impairment or symptoms; on the contrary, they are to be identified so as to exclude them from the assessment process. That exercise must be undertaken in conjunction with the assessment of the degree of permanent impairment attributable to the primary psychological injury the subject of the claim. Thus, a secondary psychological injury is to be identified and then disregarded in calculating the degree of permanent impairment arising from the injury the subject of the claim”
At [63] Basten AJ wrote:
“As noted above, that exercise is not in accord with the language of s 65A. It is also inconsistent with the recent decision of the Court of Appeal (post-dating the appeal panel decision in this matter), Coca-ColaEuropacificPartners API Pty Ltd vPombinho. [9] In that case ground 4 before the appeal panel had “addressed the fact that no deduction was applied by the Medical Assessor for the purposes of s 323 of the [Workplace Injury Act]”. [10] Although not concerned with s 65A of the Workers Compensation Act, Ward P held:
“[86] In any event, Ground 4 in my opinion suffices to bring the assessment of Mr Pombinho’s current whole person impairment within the scope of the grounds of appeal and hence within the jurisdiction of the Appeal Panel. That is because I accept the appellant’s submission that, in order to determine the impact of pre-existing injury on current whole person impairment, a comparative exercise was necessary and that it would be logically incoherent simply to begin the exercise from a fixed starting point (ie, the 24% whole person assessment made by the Medical Assessor) and then separately to consider the extent to which pre-existing injury contributed to that whole person impairment (and then to apply that amount to the fixed starting point) without considering the starting point itself. The approach required by the Guidelines is a subtractive approach, requiring a deduction from the starting point of whole person impairment but it would make the exercise artificial if, having been required to consider all of the material that the Medical Assessor had failed to consider, the Appeal Panel could not then revisit the starting point of the assessment.”
64. The application of s 65A provides a far stronger basis for that reasoning than the exercise required by s 323, just because it is not a “subtractive approach”. That is, even if one accepted that deductions could be made under s 323 from a fixed starting point, s 65A is only directed to the starting point. The reasoning in Pombinho applies a fortiori and, although arguably obiter, should be applied by this Court.”
The Appeal Panel accepts that the Medical Assessor failed to provide adequate reasons to explain how Mr Cheong’s secondary psychological injury impacted or did not impact the assessment. The Medical Assessor merely agreed with Dr Saboor and Dr Bisht that there has been some contribution to his impairment by his pain but then wrote “I think even with that taken into account, his WPI was 13%”. The Appeal Panel accepts that the Medical Assessor ought to have given a more expansive explanation as to why he did not consider that the secondary psychological injury impacted his assessment, when both IMEs did so.
Further, the Medical Assessor did not adopt the approach set out in Keilly No 2 or in Matheson or explain in adequate detail why he did not do so. The Appeal Panel is satisfied that the Medical Assessor erred in failed to properly identify any secondary psychiatric injury, which he was required to do, before disregarding it in calculating the degree of permanent impairment arising from the primary psychiatric injury. This ground of appeal is made out.
The Appeal Panel having found error, concludes that it was necessary for the appellant to undergo a further medical examination because there was insufficient evidence on which to make a determination in respect of any reduction to be made for the secondary psychological injury. The Appeal Panel notes that in order to determine the impact of the secondary condition (which occurred before the primary psychological injury) on current WPI, a comparative exercise is necessary and it would be logically incoherent to simply begin the exercise from a fixed starting point, ie, the 17% WPI PIRS assessment made by the Medical Assessor (Coca-Cola Europacific Partners API Pty Ltd v Pombinho [2024] NSWCA 191).
As noted above, Dr Micheal Hong of the Appeal Panel examined the appellant on 8 July 2025. Dr Hong provided the following report:
1. HISTORY RELATING TO THE INJURY
· Brief history after MAC:
Mr Cheong had a neck fusion surgery on 13 June 2025, and this is the first surgery after his neck injury. He said he may need more surgery. He was admitted for 3 weeks, and only discharged last Thursday, and was in a soft neck collar and was in bed. He sat up for the assessment. I discussed potentially deferring the assessment, he felt able to talk and eventually we agreed to proceed with the assessment.
Mr Cheong thinks he is 56 or 57 years old. He lives with his wife and has no children. He was born in China and came to Australia, and was working 8 hours a day 5 days per week, as a dim sum chef at China Doll. He said he worked there twice, altogether for more than 14 years. He had been a dim sum chef for 30 years. He had a previous neck problem.
During the COVID pandemic, the restaurant opened as they supplied takeaway food options. Mr Cheong stated that he was cleaning and lifting a heavy mixer on 7 May 2020 and twisted his neck, and sustained a neck and shoulder injury.
Mr Cheong attempted to return to work several times, but his physical injuries and pain were aggravated and he completely ceased working by 2022, and was made redundant. He told the head chef he could not do repetitive movements and could not maintain the same posture for long, or lower his head. He was told the only work they could offer was dishwasher work. Mr Cheong said initially, they did not want him to return to work and denigrated him. He worked 2-3 days per week, at 4 hours a day, and said the last job was preparing san chow bo ingredients, but it involved lowering his head for too long. He experienced increased neck pain after returning to work, and he had severe anxieties. The head chef then said they had no suitable duties for him. He said his GP did not certify him fit to return to work after that.
He said he wants to return to work and found another employer, he needed to buy the cooking equipment but the insurer did not approve it, so he could not proceed with it. He felt very upset by it and said he had more emotional difficulties after that.
Mr Cheong developed chronic depressive symptoms, from within 2-3 months of the neck injury, he said because his employer told him not to put in Workcover, and tried to stop his claim and he was upset. He said his employer made false allegations, about sexual harassment against female workers and it upset him too. His doctor told him it was his right to lodge a claim. Subsequently, his anxiety and depressive symptoms deteriorated as a result of the return to work problems, with increased pain problems.
Before surgery, Mr Cheong had chronic pain symptoms, due to the injury at C5/6, and could not lower his head for long periods, and struggled with moving his head left and right. He said he has always been a dim sum chef and has no other skills, and could not do the work
due to his neck. He said his blood pressure went really high, reaching about 180, and his doctor had to change his medication. He became worried that if he went back to work, he would faint or pass out.
· Present treatment:
Mr Cheong is taking:
·Zopiclone sleeping pill 15mg
·Agomelatine 50 mg at night
·Brintellix 15 mg daily
He consults a psychiatrist, Dr Charles Chan, every 4 weeks, and psychologist Justin Leong every 4 weeks.
He said psychological and psychiatric treatment help because when he sleeps better, his pain is better the next day. Sometimes he has nightmares and thrashes around. He struck his wife in bed. He never hits anyone when awake.
· Present symptoms:
Mr Cheong has chronic anxiety and depressive symptoms, and sleep problems. He reported concentration difficulties. He does not eat regularly and his weight fluctuated. He needs physical assistance from his wife. He reported being frustrated and irritable.
· Social activities/ADL:
Mr Cheong said that he was going to the church to socialize and that was his main social recreation, but it was not regularly since his neck injury. When people repeatedly kept asking questions, he became fed up with answering, so he stopped going about one or two years ago.
He reported that he avoids everybody, but a couple of friends still come to visit him. They might bring some takeaway food or fruit. I asked how often this happened, he said not once a month, maybe once every two months in 2025. He said they do not cook, so his friends bring takeaway food and fruits.
Before surgery, he stays at home, and said he does not want to see anyone. Sometimes he gets the sun by going to his balcony. He said he cannot lift anything heavy and depends on his wife but this affected the relationship.
He said he could not drive before surgery, due to medication for pain management, and his doctor said he should not drive. When he goes out, he uses taxi, trains and buses, but someone has to go with him, usually his wife or a friend. He said he was going out by himself, including when returning to work over several short periods, but then could not do it anymore, after his psychological health deteriorated after he attempted to return to work.
Mr Cheong said he cannot cook as he cannot lower his neck, and he wants to avoid pain. He needs assistance with showering from his wife.
He said he does not like reading and has never been one to read books. He said he would not have become a chef, if he liked reading. He only completed primary school education. He does not know how to type or use internet, and does not know how to go online.
Before the subject injury, he enjoys watching TV and listening to the radio. He no longer watches TV due to pain, and explained if he sits for 30 minutes, he has severe neck and shoulder pain. We discussed Dr Yu Tang Shen saw him in February 2025, and he could focus on watching TV for 30 minutes at that time, and he confirmed that is correct, and said he watches SBS TV shows in Cantonese, National Geography from Taiwan, travel programs and cooking shows. He said he listens to the radio more, as he can lie down to listen. He said he has more severe shoulder pain since his operation and no longer watches TV.
He said he has not been to TAB or gambled for a long time. He said he felt low after his neck injury, and so he went to the TAB and went on his own previously.
2. FINDINGS ON EXAMINATION
Mr Roy Yau was the interpreter.
Mr Cheong was assessed by video. He and his wife were at home during the assessment. He had a neck collar and was in bed, and sat up for the assessment. He was restricted in his affect. He spoke spontaneously and generally gave long answers. He was not thought disordered and the history was easy to follow, and he was assessed for 1 hour 15 minutes and the interpreter did not identify overt problems with the history provided. He said he took analgesic medications 2 hours before the assessment.
Before I completed the assessment, I asked him for additional information that he wanted to add and he discussed he was afraid of his employer, of being harmed by them, and they gave other people more hours and cut his wages during the COVID pandemic, and he asked for more work, but he did not have lunch breaks, and had to eat at work and the second chef complained about it. After he ceased working, he returned to work to pick up his tools, but some of his tools went missing. He said the head chef said, if they had known they could terminate him, they would have done it earlier. He said since his Workcover, they bullied him in many different ways. He said workplace bullying and harassment started more than 10 years ago, including sexual harassment after he accidentally bumped into a female worker and he quit his job, then his boss asked him to go back.
3. SUMMARY
· summary of injuries and diagnoses:
In summary, Mr Cheong did not have a prior psychiatric condition. He reported workplace bullying, leading to him leaving the restaurant. He was invited to come back to the same restaurant, and reported that in May 2020, while lifting a heavy mixer, he sustained neck and shoulder injuries and suffered chronic pain. He had the first surgery about four weeks ago and is still recovering.
Mr Cheong reported that not long after the neck injury, he was upset because of how he was treated, and there were false allegations against him, which led to the development of depression symptoms, eventually reaching the criterion for a Major depressive disorder. This is a primary psychological injury.
He reported that he attempted to return to work several times but experienced increased pain and could not tolerate the aggravation in pain, and because of this, he suffered severe anxiety symptoms, consistent with a secondary psychiatric injury, an adjustment disorder.
File review:
Dr Sylvia Wong, GP, reported on 27 August 2020, noted Mr Cheong was left in a 30kg mixer and suffered neck and upper back pain, causing him to suffer insomnia. He started to work three days a week, three hours per day from 29th of July 2020. However, he became more anxious, found it difficult to fall asleep, and had difficulty breathing when seated.
Dr Wong, on the 10th of March 2022, responded to iCare questions and said that Mr Cheong had been looking for work eight hours per day, three days a week, without success. He was told that if he could not find work within three months, his work cover payment would be reduced. He had an aggravation in November 2021, and this aggravation of depression and anxiety was attributable to the injury from May 2020. The main barrier preventing him from returning to pre-injury work was the persistent neck pain that was aggravated by work required as a dim sum chef. He had been feeling anxious that he might not be able to return to work as a dim sum chef.
Dr Charles Chan, treating psychiatrist, wrote on the 9th of October 2020, noted Mr Cheong's injury in May 2020. He tried to return to work three hours a day, three days a week, but could not tolerate more than one hour. He now presented with major depression and stopped driving, relying on friends to take him around. Mr Cheong has nightmares about his work and sense of loss, being rejected by the boss, who negatively criticised him after his injury, worried about his future job prospects.
Dr Lee, pain specialist, 28th of October 2020, noted multiple attempts to return to work, aggravation of pain with three hours of work, and anxiety issues after returning to work. He last worked two months ago.
The Certificates of capacity noted no work capacity from August 2020 due to adjustment disorder, but another report in August 2020 had checked the boxes for not being able to return to work, but also being able to work three hours, two days a week. In April 2022, he was certified for four hours a day, three days a week. Various diagnoses included major depression and adjustment disorder in the certificates.
The later Certificate of capacity certified him unfit to work, including December 2024, due to psychological distress.
PIRS Category Class Reason for Decision Self-care and personal hygiene
2 Mr Cheong's self-care has declined. He relies on takeaway food. He does not eat regular meals and does not shower regularly, but is capable of managing his self-care and personal hygiene without prompting. Mr Cheong needs physical assistance with showering and his physical injuries and pain are not assessable in the PIRS. Social and recreational activities
3 He has rare social and recreational activities, and reported some friends still visit him and bring fruit and food, and he still enjoys talking to them to a degree. Travel
2 Mr Cheong has anxiety when out and avoids being out. He was able to go out on his own after his neck injury, when there was no secondary psychological injury. He went to work in limited hours and went to TAB on his own.
Subsequently, after he developed a secondary psychological injury, he said he no longer goes out on his own.The impairment from his secondary psychological injury is set aside using the 2-step method.
Social functioning
2 Mr Cheong's relationship with his wife has deteriorated due to arguments.
He is anxious and socially avoidant, and ceased contact with most of his friends. He has maintained a couple of long-term friendships.Concentration, persistence and pace
2 Mr Cheong reported having reduced concentration.
He can focus on intellectually demanding tasks for 30 minutes.Employability
3 He has no work capacity from a psychological perspective, consistent with 5, due to his psychological injury.
Before the secondary psychological injury, he had psychological symptoms from his primary psychological injury (when there was no secondary psychological injury), and was certified fit to work 4 hours a day, 2-3 days per week, up to 12 hours per week.
The Panel applied the 2-step method and set aside his secondary psychological injury impairment, and the compensable impairment is 3, consistent with work at pre-injury workplace and pre-injury duties, less than 20 hours per week.Score Median Class 2 2 2 2 3 3 =2 Aggregate Score Impairment Total % + + + + + 14 7
The Appeal Panel adopts the report and findings of Medical Assessor Hong.
In relation to the secondary psychological injury, the Appeal Panel accepts that a two-step approach, namely, an assessment of the degree of WPI arising out of the primary psychological injury sustained as a result of the incident, excluding any impairment or symptoms arising from or attributable to, the secondary psychological condition.
The Appeal Panel finds that Mr Cheong had a secondary psychological injury, namely, an adjustment disorder.
In applying the two-step method described in Keily No 2 and Matheson, Medical Assessor Hong assessed Mr Cheong's total WPI before removing the impairment arising from his secondary injury.
The Appeal Panel noted that despite Mr Cheong's primary psychological injury, he had a work capacity up to 12 hours a week. Subsequently, due to aggravation of physical injury and pain, and also severe anxiety and the development of an adjustment disorder, which required further medication adjustment, he became incapable of returning to work due to his psychological disorder. Removing the effects of the secondary injury means that the current employability from primary psychological injury is class 3.
The Appeal Panel noted that, in terms of concentration, persistence, and pace, on reassessment the history was fairly similar to that taken the Medical Assessor. Medical Assessor Hong noted that Mr Cheong is able to focus on watching television, such as documentaries and cooking shows, for half an hour before the neck pain became the limiting factor. When lying down, he can listen to radio shows for longer. He has limited education, and never been one to read, and therefore, watching cooking shows and documentaries, would be considered an intellectually demanding task for him, and from a psychological perspective, this is consistent with Class 2.
The Appeal Panel therefore assessed 7% WPI in respect of the psychiatric injury deemed to have occurred on 6 June 2022.
For these reasons, the Appeal Panel has determined that the MAC issued on 18 February 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: | W29350/24 |
Applicant: | Koi Tim Cheong |
Respondent: | W Retail Pty Ltd ATF W Retail Unit Trust |
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 Yu Tang Chen 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) |
| Psychiatric | 6.6.22 | Chapter 11 | Chapter 14 P 361-365 | 7% | 0 | 7% |
| Total % WPI (the Combined Table values of all sub-totals) | 7% | |||||
0