Chesher v Chemico Holdings Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Chesher v Chemico Holdings Pty Ltd [2025] NSWPICMP 638
APPELLANT:	Rosemary Chesher
RESPONDENT:	Chemico Holdings Pty Limited
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	John Lam-Po-Tang
DATE OF DECISION:	26 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of primary psychiatric injury; appeal against assessment of the psychiatric impairment rating scale (PIRS) classes in respect of self care and personal hygiene, social and recreational activities, and concentration, persistence and pace; Appeal Panel found error in the assessment of self care and personal hygiene, social and recreational activities, and concentration, persistence and pace; worker re-examined; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 6 May 2025 Rosemary Chesher (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ankur Gupta, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 8 April 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):
· 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 PIC 7 - 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, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The appellant suffered a psychological injury in the course of her employment with the Secretary, Department of Communities and Justice (the respondent) deemed to have occurred on 2 January 2020.
The appellant commenced proceedings in the Personal Injury Commission (Commission) claiming 17% whole person impairment (WPI) pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of a psychiatric and psychological disorder injury deemed to have occurred on 2 January 2020.
The Medical Assessor examined the appellant on 31 March 2025. The Medical Assessor assessed 6% WPI, deducted one tenth for a pre-existing condition and added 1% WPI for effects of treatment. The total WPI assessed was 6% as a result of the injury deemed to have occurred on 2 January 2020.

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 the appellant should undergo a further medical examination because there was 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

Dr John Lam-Po-Tang of the Appeal Panel conducted an examination of the appellant on 8 August 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.
The appellant’s submissions include the following:
(a)    the Medical Assessor failed to consider relevant evidence before him, made demonstrable errors, failed to give relevant evidence appropriate weight, made an assessment based on incorrect criteria, failed to set out the actual path of reasoning for the assessment, erred in certain class ratings of the Psychiatric Impairment Rating Scales (PIRS) and erred in failing to properly apply cls 11.11 and 11.12 of the Guidelines;
(b)    the appellant relies upon the following grounds:
(i)The assessment was made on the basis of incorrect criteria.
(ii)The Medical Assessment Certificate contains a demonstratable error.
(iii)The appellant submits that the Medical Assessor erred in failing to properly apply cls 11.11 and 11.12 of the Guidelines.
(iv)The Medical Assessor has overlooked the ample evidence provided to him that exhibits that the workplace bulling and ongoing harassment are the main contributing factor to her mental health deterioration;
(c)    the Medical Assessor’s assessment was based on incorrect criteria as he assessed the appellant's impairment in a manner which is contrary to the Guidelines (Marina Pistonis v Registrar of the Workers Compensation Commission [2009] NSWCA 86 ("Pistonis"));
(d)    the factual and medical treatment evidence from the appellant’s treating doctors, specialists and medical expert evidence, on the part of both parties, is inconsistent with the MAC in the matter;
(e)    as noted above, Associate Professor Robertson, consultant psychiatrist, dated 7 March 2024 certified the appellant as suffering from 22% WPI under the applicable guidelines in respect of her psychological injury. Since the time of his medical examinations, the appellant's medical condition has deteriorated, and this is reflected in her medical and clinical records. Her treating psychologist, Dr Simon Kam in his medical report 11 August 2023, noted that the appellant's depression and anxiety has continued to worsen. Dr Kalava also gives a diagnosis of Generalised Anxiety Disorder - work related. This was all consistent with Associate Professor Michael Robertson who also agrees that the appellant suffers from chronic anxiety symptoms consistent with a generalised anxiety disorder. This ought to be all considered in light of the fact that the appellant has still required extensive treatment, and medications to current date;
(f)    the Medical Assessor has failed to provide reasons or adequately explain his conclusions (Campbelltown City Council v Vegan [2006] NSWCA 284 ('Vegan')). The Medical Assessor failed to engage as part of his medical examination and assessment of the appellant, with the medical evidence from the appellants' treating doctors and specialists and provided a MAC in which the categorisations were glaringly improbable, incongruent, and unexplained. A clear misunderstanding can be demonstrated and provided an unsupportable reasoning process in the face of overwhelming factual and medical evidence in the matter;
(g)    Self-care and personal hygiene - the Medical Assessor’s assessment of Class 2 for the self-care and personal hygiene category is incorrect;
(h)    the evidence recorded by the Medical Assessor demonstrates that the appellant struggles to participation her normal activities of daily living or engage in her regular personal care tasks. She has lost interest in maintaining her appearance and personal hygiene. She has gained 15kg weight. She requires prompting to attend to tasks, no longer takes pride in appearance, and does not have initiative to perform self-care tasks. The appellant is reliant on her husband for basic activities such as cooking, laundry, cleaning, and general domestic chores. She has lost her independence and ability to perform these tasks herself;
(i)    Class 2 of Table 11.1 of the Guidelines requires an ability to live independently without support and look after herself adequately. There is no evidence that the appellant is able to live independently or that she is able to look after herself adequately. The appellant lives with her husband whom she has known since she was 16 years of age and she is reliant on him. The evidence recorded by the Medical Assessor demonstrates that she requires prompting to shower, which she does only three times per week and to wear clean clothes. Her husband cooks mainly and she is only able to prepare basic meals. The evidence recorded by the Medical Assessor satisfies Class 3 and not Class 2;
(j)    the assessment of Class 2 is inconsistent with the recorded evidence. The assessment ought to be Class 3 for this PIRS category on the Medical Assessor 's recorded evidence;
(k)    Social and recreational activities - The Medical Assessor assigned Class 1 for this PIRS category. Class 1 is appropriately assigned in circumstances where there is no deficit or a minor deficit attributable to the normal variation in the general population, and where the injured worker is able to participate in social activities that are age, sex and culturally appropriate and is actively involved in clubs;
(l)    the evidence recorded by the Medical Assessor is that the appellant likes to spend time with her grandchildren, walk with her husband on the beach, watch TV with her husband, visit her parents. She is able to go to the shops but only at certain times and avoids it as much as she can. The evidence clearly demonstrates that the appellant is not able to participate in social activities without her husband or a familiar family member. The intention of Table 11.2 is to assess the ability of a psychologically injured person to engage in social activities outside the home in a public forum without inhibition. The evidence recorded by the Medical Assessor in the MAC does not demonstrate any such ability. To the contrary, it demonstrates that the appellant qualifies for Class 3 in this category because she cannot go out without a support person, whether it is her husband or a family member;
(m)     the Medical Assessor incorrectly assessed Class 1 for this category but ought to have assessed Class 3 on the basis of his own recorded evidence;
(n)    Concentration, persistence and pace - The Medical Assessor 's assessment of concentration, persistence, and pace is incorrect. The Medical Assessor assigned Class 2 but the evidence recorded by the Medical Assessor ought to have resulted in Class 3 for this category.
(o)    the Medical Assessor recorded in the body of the MAC that:
“The appellant loves to read but she can only read at certain times and finds it difficult to comprehend at others and that it depends on how anxious she is. He also recorded that the appellant finds it difficult to watch a film all the way through and she gets overwhelmed with managing the finances and has had to pass on the responsibility to her husband".
He recorded that she experiences memory problems and has to set reminders on her phone to keep track of her appointments;
(p)    while the Medical Assessor noted that the appellant stopped managing the family's finances, he failed to consider that the appellant was, prior to her injury, employed as a pharmacy manager. She was managing the family's finances for a long period of time which demonstrates her high level of intellectual functioning and ability to complete cognitive tasks of a complex and high demand prior to her injury;
(q)    Class 2 is appropriate where there is evidence that the injured worker is able to undertake a basic training course, or a standard course at a slower pace and evidence that the injured worker can focus on intellectually demanding tasks for periods up to 30 minutes, then feels fatigued or develops a headache;
(r)    whilst these are examples of activities that may qualify for a Class 2, it is clear, when contrasting what is required to qualify for Class 3, that the difference between the classes is an ability to engage with complex and intellectually demanding tasks or instructions. There is no evidence that the appellant is able to engage in intellectually demanding tasks for up to periods of 30 minutes or at all. The evidence, on the contrary, demonstrates that the appellant is unable to comprehend what she is reading at times, has difficulty watching a film all the way through, and is unable to do the family's finances, a task which she has been undertaking for years and with which she is familiar;
(s)    the Medical Assessor stated that the appellant was able to concentrate during the interview with him. This is not an appropriate measure by which to assess a person's ability to concentrate or focus. The PIRS category and Table 11.5 of the applicable guidelines are intended to measure the functioning of a person independently. Answering questions and being guided by a professional in an interview is not the same as being able to concentrate and focus in the real world independently;
(t)    the Medical Assessor incorrectly assigned Class 2. The Medical Assessor ought to have assigned Class 3 for this category, and
(u)    error should be found and the MAC revoked. The appellant should be re-examined by the Appeal Panel and that a new MAC be issued in its place.
The respondent’s submissions include the following:
(a)    the MAC dated 8 April 2025 does not contain a demonstrable error and should be confirmed;
(b)    the Medical Assessor correctly applied the Guidelines as well as AMA 5 in assessing extent of WPI of the appellant’s psychiatric injury;
(c)    the assessment by the Medical Assessor was not made on the basis of incorrect criteria and that the MAC does not contain a demonstrable error. The Medical Assessor correctly applied cls 11.11 and 11.12 of the Guidelines in assessing WPI;
(d)    the Medical Assessor thoroughly considered all of the available medical evidence as was summarised in paragraph 10(a) of the MAC;
(e)    details were not provided in relation to the alleged errors in the MAC, as to the assessment of impairment in a manner contrary to the Guidelines and factual evidence from treating doctors and Independent Medical Examiners (IMEs) being inconsistent with the MAC;
(f)    the Medical Assessor correctly applied AMA 5 and the Guidelines in assessing the extent of WPI as at the date of the examination on
26 March 2025. The Medical Assessor is not bound to follow or accept the opinion of Associate Professor Robertson as per his report dated
7 March 2024;
(g)    the Medical Assessor correctly based his classifications in accordance with the PIRS as at the date of the examination of 26 March 2025 as per the MAC;
(h)    the Medical Assessor provided detailed reasons in support of his opinion and the assessment of WPI;
(i)    the Medical Assessor correctly applied Class 2 in respect of self-care and personal hygiene in accordance with Table 11.1 of the PIRS considering the contents of page 3 of the MAC;
(j)    the Medical Assessor correctly applied Class 1 in respect of social and recreational activities in accordance with Table 11.2 of the PIRS considering the history recorded on page 3 of the MAC;
(k)    the Medical Assessor correctly applied Class 2 in respect of concentration, persistence and pace in accordance with Table 11.5 of the PIRS;
(l)    the Medical Assessor correctly applied the Guidelines in assessing the extent of work-related psychiatric injury, and
(m)     the Medical Assessor made no errors in resulting from the work-related injury and therefore the MAC of the Medical Assessor dated      8 April 2025 should be confirmed.

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 has reviewed the MAC and the evidence in this matter.

Ground 1 - General Matters

The appellant submits that the Medical Assessor erred in failing to properly apply cls 11.11 and 11.12 of the Guidelines.
The appellant submits that factual and medical treatment evidence from the appellant’s treating doctors and specialists and medical expert evidence, on the part of both parties, are inconsistent with the MAC in the matter.
However, the appellant does not identify specifically what documents the Medical Assessor failed to properly consider.
It is not necessary that the Medical Assessor refer to every document submitted or explain in detail the criteria applied to reach his professional judgment (Campbelltown City Council v Vegan [2006] NSWCA 284.)
The Appeal Panel is satisfied that although the Medical Assessor may not have referred specifically to some documents, such documents would have been considered by him in his assessment.
The Appeal Panel notes although the appellant failed to specify what factual and medical treatment evidence from the parties is inconsistent with the MAC, any specific evidence referred to by the appellant will be considered by the Appeal Panel in relations to the grounds of appeal concerning the assessment in the three PIRS categories.
The appellant submits that the Medical Assessor has failed to provide reasons or adequately explain her conclusions (Campbelltown City Council v Vegan [2006] NSWCA 284 ('Vegan')).The Medical Assessor failed to engage as part of her medical examination and assessment of the injured worker, with the medical evidence from the appellant’s treating doctors and specialists and provided a MAC in which the categorisations were glaringly improbable, incongruent, and unexplained. A clear misunderstanding can be demonstrated and provided an unsupportable reasoning process in the face of overwhelming factual and medical evidence in the matter.
Again, this submission is made in general terms and the appellant does not identify how the Medical Assessor failed to engage with the evidence from treating doctors and specialist. which categorisations were glaringly improbable, incongruent, and unexplained and why. The appellant fails to explain how a clear misunderstanding can be demonstrated and how the Medical Assessor reasoning was unsupportable. However, the Appeal Panel will consider any submission concerning a failure to provide to provide reasons or adequately explain his conclusions in relations to the grounds of appeal concerning the assessment in the three PIRS categories.
This ground of appeal is not made out.

Ground 2 – Self-care and personal hygiene

The appellant submits that the assessment of Class 2 is inconsistent with the recorded evidence. The appellant argues that the assessment ought to be Class 3 for this PIRS category based on the Medical Assessor 's recorded evidence.
The examples under Table 11.1 for “self-care and personal hygiene” in the Guidelines are:
“Class 2 Mild impairment: Able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.
Class 3 Moderate impairment: Can't live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2-3 times per week to ensure minimum level of hygiene and nutrition”.

The Medical Assessor assessed the appellant as Class 2 for self-care and personal hygiene. In the PIRS Rating Form, the Medical Assessor wrote:
“Self-care and personal hygiene - Class 2.
As described in the main body of the report, there is mild impairment. She has stopped caring for her appearance and only cooks basic meals. She does not shower regularly but does clean her teeth daily. She engages in meditation to manage her thoughts.”
Under “Present symptoms”, the Medical Assessor noted: “Her appetite has increased, and she says that she is doing “comfort eating”.”
Under “Social activities/ADL” the Medical Assessor wrote:
“She has gained fifteen kilos and stopped wearing makeup ‘most of the time’. She no longer styles her hair as she used to. She says that she is unable to follow a recipe. Her husband cooks mainly. She only prepares basic meals. She says that she showers three times a week but cleans her teeth daily. She meditates in the morning to manage her thoughts.”
In her statement dated 16 December 2024, the appellant stated:
“41… I rely on my husband heavily now for domestic and supporting me when going out of the house.
42. I rely on my husband to prompt me to attend to self-care needs.
43. I try to eat a stable diet although occasionally default to calorie-dense nutrient deficient usually carbohydrate rich food…
56. Prior to my injury, I was self-sufficient and was responsible for all aspects of household duties. I had previously carried out all day-to-day chores including washing, cooking, gardening, cleaning, laundry, making beds, and shopping.
57. Since my injury, I have had to rely on my husband for assistance including assistance with shopping, vacuuming, cooking, washing clothes, hanging clothes, shopping, and driving to medical appointments.
58. I am uninterested in socialising. I avoid social interactions and family contact.
59. I rely on my husband and to help with attending to everyday domestic duties. I try to do what I can which is usually just the basic.
60. Prior to my workplace incident, I used to take pride in my appearance and take initiative e to perform self-care tasks. Previously, I used to take priority in that, now I require prompting to attend such tasks”.
Associate Professor Michael Robertson, consultant psychiatrist, in a report dated 30 January 2024, assessed a Class 3 for self-care and personal hygiene providing the following reasons:
“She reports that she is variably a motivated to attend to self-care and occasionally will need prompting by her husband. She tries to eat a stable diet although occasionally defaults to calorie-dense nutrient deficient usually carbohydrate-rich food.”
Dr Robert Kaplan, consultant forensic psychiatrist, in a report dated 11 September 2024 under “Daily Activities” noted:
“She will shower but does not always wear makeup. She attends to housework activities such as laundry, washing, dishes but does minimal cooking as this is done by her husband”.
Dr Kaplan described the appellant as casually dressed and well groomed.
Dr Kaplan did not make an assessment of impairment.
The appellant submits that the evidence recorded by the Medical Assessor demonstrates that she struggles to participate in her normal activities of daily living or engage in her regular personal care tasks.
The Appeal Panel accepts that the appellant has lost interest in maintaining her appearance and personal hygiene, gained 15kgs in weight and stopped wearing makeup “most of the time” or styling her hair as she used to. The Appeal Panel accepts that the appellant only prepares basic meals and her husband mainly cooks. The Medical Assessor noted that she says that she showers three times a week but cleans her teeth daily.
The Medical Assessor made no specific reference to the appellant’s statement dated
16 December 2024. This statement refers to the appellant’s reliance on her husband to prompt her to attend to self-care needs as well as reliance on her husband to provide assistance with shopping, vacuuming, cooking, washing clothes, hanging clothes, shopping, and driving to medical appointments. The Appeal Panel notes that the appellant stated that before the subject injury, that she was self-sufficient, was responsible for all aspects of household duties and had carried out all day to day chores including washing, cooking, gardening, cleaning, laundry, making beds, and shopping.
Associate Professor Robertson referred to a need for prompting in self-care activities whereas Dr Kaplan referred to her being able to shower but not always wear makeup and attending to housework activities such as laundry, washing, dishes but doing minimal cooking.
Class 2 of Table 11.1 of the Guidelines requires an ability to live independently without support and look after herself adequately. The appellant’s statement is evidence that she is not able to live independently and that she is able to look after herself adequately as she is reliant on her husband. The evidence recorded by the Medical Assessor lacked details as to whether the appellant is prompted by her husband in self-care activities and what precise assistance he provides in domestic activities. It is not clear from the reasons in the MAC whether the applicant satisfies Class 2 or Class 3. An assessment of Class 3 would be consistent with the applicant’s evidence in her statement but the Medical Assessor does not refer to this.
The Appeal Panel was satisfied that the reasons given by the Medical Assessor for a Class 2 rating for self-care and personal hygiene did not provide an adequate path of reasoning to explain why the appellant should be assessed as Class 2 rather than Class 3.
The Appeal Panel notes that Associate Professor Robertson assessed Class 3 for self-care and personal hygiene. However, the Medical Assessor failed to provide any opinion as to his difference in opinion in this rating this Class.
The Appeal Panel is satisfied that there was a demonstrable error in the MAC in relation to the ratings in the PIRS category of self-care and personal hygiene and the assessment in this class is made on the basis of incorrect criteria. This ground of appeal is made out.

Ground 3 – Social and recreational activities

The appellant submits that the Medical Assessor incorrectly assessed Class 1 for this category but ought to have assessed Class 3 on the basis of his own recorded evidence.
The examples under Table 11.2 for “Social and recreational activities” in the Guidelines are:
“Class 1: No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved in these.
Class 2: Mild impairment: occasionally goes out to such events e.g. without needing a support person, but does not become actively involved (e.g. dancing, cheering favourite team).
Class 3: Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.”
The Medical Assessor assessed the appellant as Class 1 for social and recreational activities. In the PIRS Rating Form, the Medical Assessor wrote:
“Social and recreational activities - Class 1
As described in the main body of the report, there is a minor deficit attributable to the normal variation in the general population. She does not socialise as much, but she can go to shops to buy groceries and enjoys spending time with her husband and grandchildren. She enjoys watching TV with her husband and going out for meals with him. She goes to the beach for walks."
Under “Social activities/ADL”, the Medical Assessor wrote:
“Mrs Chesher has been with her husband since she was sixteen years old. She has two children, a daughter and a son. She has two grandchildren as well. She says that she is with her husband and the rest of the family. She describes them as “very close”.
She speaks to her brother regularly and meets him when he comes over from New Zealand. She also remains in touch with her parents. She visits them but not as often as she did when she was working. She lives with her husband, her daughter and two grandchildren….
She enjoys spending time with her grandchildren. She likes to go on walks with her husband on the beach. She also enjoys watching TV with her husband. She can go for meals but gets anxious. She can go to the shops on her own for groceries. She says that that is only at certain times and she avoids it as much as she can. She can go if her husband or another family member is with her. She says that she visits her parents and she calls her son occasionally”.
In her statement dated 16 December 2024, the appellant stated that she had withdrawn from social interaction. She described a lack of motivation towards socialising as well as hobbies. She stated that she had an inability to participate in social, sport and recreational activities. She stated that she had need for a support person. The appellant wrote:
“67. Prior to my workplace injury, I used to enjoy going shopping, going out with friends and family, and planning holidays.
68. Since my workplace injury, I have not been able to attend social events with my family or go on holidays.”
Associate Professor Robertson, in a report dated 30 January 2024, assessed Class 3 for social and recreational activities providing the following reasons:
“She usually makes excuses to not go out, refuses to accept visitors and is reluctant to socialise outside of her immediate family”.
Dr Kaplan, in a report dated 11 September 2024 noted:
“Recreational activities are reading fantasy novel series, movies, shows and
television. She uses an iPad and keeps up with the news. She is doing painting and
pottery crafts. She likes gardening where she will water the plants and clean up after the dog. When feeling better she will walk with her husband. She has minimal use of social media but follows several individuals whom she admires on TikTok.
At times, she can get bored by the routine but tries to keep active. To avoid being
introspective, she reminds herself that she has done nothing to which she should feel guilty about.
She may ride her push bike and walk to the beach. Her husband goes fishing and she mentioned that she will accompany him at times”.
The appellant submits that the evidence recorded by the Medical Assessor is that she likes to spend time with her grandchildren, walk with her husband on the beach, watch TV with her husband and visit her parents. The appellant submits that the evidence clearly demonstrates that she is not able to participate in social activities without her husband or a familiar family member.
The Appeal Panel noted that the Medical Assessor reported that the appellant “can go to the shops on her own for groceries. She says that that is only at certain times and she avoids it as much as she can. She can go if her husband or another family member is with her.” There is some inconsistency in this history as the Medical Assessor first appears to have stated that the appellant can go to the local shops on her own but later appears to qualify this by adding that she can only go if her husband or another family member was with her.
There was no reference by the Medical Assessor to the appellant’s statement and her description of her social and recreational activities before the subject injury and inability to attend social events with her family or go on holidays since the injury. There is no reference in the MAC to the appellant socialising with friends or people outside the family since the subject injury.
Stern JA in Botha v Secretary, NSW Department of Customer Service [2024] NSWSC 781 at [68] considered the aim of Table 11.2 and said: “Rather, the intention in table 11.2 is to provide a tool for assessing the worker’s ability to engage in activities that are properly characterised as social or recreational”.
The Medical Assessor, in the PIRS Rating Form and his assessment of Class 1 for social and recreational activities, referred to the appellant having a minor deficit attributable to the normal variation in the general population. The Medical Assessor noted that she does not socialise as much, but she can go to shops to buy groceries and enjoys spending time with her husband and grandchildren, enjoys watching TV with her husband and going out for meals with him and goes to the beach for walks.
The Appeal Panel is of the view that the activity of spending time with her family could be regarded as correctly characterised as conduct best assessed under “social functioning” although social and recreational events with her family and partner are properly characterised as social and recreational activities. However, the appellant’s evidence is that she no longer attends social events with her family. The activity of going to the shops to buy groceries could be regarded as correctly characterised as conduct best assessed under “travel”. It follows that the Medical Assessor has included some irrelevant considerations into the assessment of impairment in this scale.
The Appeal Panel considers that an inability to socialize outside her immediate family is not a minor deficit attributable to the normal variation in the general population. Further, the need to go out with a support person, which was referred to by the Medical Assessor, does not support a Class 1 rating for social and recreational activities. The Appeal Panel finds that the assessment of Class 1 for social and recreational activities was not in accordance with the criteria in the Guidelines and this was a demonstrable error.
This ground of appeal is made out.

Gound 4 – Concentration, persistence and pace

The appellant submits that the Medical Assessor 's assessment of concentration, persistence, and pace is incorrect. The Medical Assessor assigned Class 2 but appellant argues that the evidence recorded by the Medical Assessor ought to have resulted in Class 3 for this category.
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 2 for concentration, persistence and pace. In the PIRS Rating Form, the Medical Assessor wrote:
“Concentration, persistence and pace - Class 2.
As described in the main body of the report, there is mild impairment. She describes reduced concentration, but was able to focus throughout the assessment. She describes being able to read at certain times but not others. She has stopped
managing the family's finances. She has become forgetful as well.”
Under “Social Activities /ADL” the Medical Assessor wrote:
“Mrs Chesher says that her concentration is ‘really bad’. She says that she loves reading. She can only read at certain times and finds it difficult to comprehend at others. She says that that is dependent on how anxious she is feeling. She finds it difficult to watch a film all the way through. She says that she gets overwhelmed with managing the finances and has had to pass on the responsibility to her husband. She is also experiencing memory problems. She forgets where she puts things. She sets reminders on her phone to keep track of appointments”.
Under Findings on Physical Examination on page 4 of the MAC the Medical Assessor noted: “not applicable”.
In her statement dated 16 December 2024, the appellant stated that by 2022 her husband had taken over all her finances, budgeting, paying her bills. She stated that she still faced challenges with her motivation and energy levels varied from day to day. She described disabilities including forgetfulness, loss of focus, cognitive impairment, loss of motivation.
Associate Professor Robertson, in a report dated 30 January 2024, assessed Class 3 for concentration, persistence and pace providing the following reasons:
“She is forgetful and inattentive. She fears that she is dementing. She cannot read beyond a few lines before losing focus..”
Dr Kaplan, in a report dated 11 September 2024 noted:
“On system review, memory and concentration have worsened. She is very forgetful, going into a room and not knowing why she is there, but does not lose items. She needs a shopping list, keeps a diary, and has reminders for appointments.
Dr Kaplan also noted: “At interview, Ms Chesher spoke positively about the benefits from treatment, especially EMDR, and the progress she had made…”
The Appeal Panel accept that the Medical Assessor did not appear to have given any consideration to the statement of the appellant and her evidence relevant to this class. Nor did the Medical Assessor conduct a mental state examination.
The appellant submits that the Medical Assessor recorded that the appellant loves to read but she can only read at certain times and finds it difficult to comprehend at other times and that "it depends on how anxious she is". He also recorded that the appellant finds it difficult to watch a film all the way through" and she gets overwhelmed with managing the finances and has had to pass on the responsibility to her husband. The Medical Assessor recorded that the appellant experiences memory problems and has to set reminders on her phone to keep track of her appointments.
The appellant submits that it is clear, when contrasting what is required to qualify for Class 3, that the difference between the classes is an ability to engage with complex and intellectually demanding tasks or instructions. The appellant argues there is no evidence that the appellant is able to engage in intellectually demanding tasks for up to periods of 30 minutes or at all.
The appellant submits that the ability to concentrate during the interview with the Medical Assessor is not an appropriate measure by which to assess a person's ability to concentrate or focus because the PIRS category and Table 11.5 of the Guidelines are intended to measure the functioning of a person independently. The Appeal Panel does not accept that submission as the examination by the Medical Assessor enables an objective assessment of functioning in the areas or concentration, persistence and pace even if it is conducted in a structured manner. However, evaluation of functioning in the interview or examination is only one matter to be taken into account when assessing of concentration, persistence and pace.
Class 2 of Table 11.5 of the Guidelines is appropriate where there is evidence that the appellant is able to undertake a basic training course, or a standard course at a slower pace and evidence that the appellant can focus on intellectually demanding tasks for periods up to 30 minutes, then feels fatigued or develops a headache. In this matter, there is evidence that is she unable to comprehend what she is reading at times, has difficulty watching a film all the way through, and is unable to do the family's finances.
The appellant’s statement is evidence that her husband had taken over all her finances, budgeting, paying her bills, and she faced challenges with her motivation with energy levels varying from day to day. She described disabilities including forgetfulness, loss of focus, cognitive impairment, loss of motivation. The evidence recorded by the Medical Assessor lacks detail, for example, as to how long she could read or watch a film. It is not clear from the reasons in the MAC whether the applicant satisfies Class 2 or Class 3. An assessment of Class 3 would be consistent with the applicant’s evidence in her statement, but the Medical Assessor does not refer to this.

The Appeal Panel was satisfied that the reasons given by the Medical Assessor for a Class 2 rating for self-care and personal hygiene did not provide an adequate path of reasoning to explain why the appellant should be assessed as Class 2 rather than Class 3.
The Appeal Panel notes that Associate Professor Robertson assessed Class 3 for concentration, persistence and pace. However, the Medical Assessor failed to provide any opinion as to his difference in opinion in this rating this Class.
Based on the evidence before the Appeal Panel, and for the reasons provided by the Medical Assessor in the MAC, the Appeal Panel considered that the reasoning process was not sufficiently clear in the assessment of concentration, persistence and pace. The failure to provide a sufficiently clear reasoning process is a demonstrable error,
The Appeal Panel is 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 is made on the basis of incorrect criteria. 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 an assessment of the three PIRS scales appealed.
As noted above Medical Assessor Lam-Po-Tang of the Appeal Panel examined the appellant on 8 August 2025. Medical Assessor Lam-Po-Tang provided the following report:
1.     The workers medical history, where it differs from previous records
Not applicable

2.     Additional history since the original Medical Assessment Certificate was performed
The original Medical Assessment Certificate was based on an assessment by Dr Ankur Gupta on 8 April 2025.
In April 2025, Ms Chesher and her husband travelled to Europe. She explained that the trip had been booked in 2024: "My husband wanted to do a trip this year to go overseas. This would be the only trip" that they would take. On the way to Europe, they had a one-night stopover in Dubai. She added, "We went to Germany and Amsterdam, Paris, London and Scotland", over a five-week period. She said that part of the trip involved a 15-day river cruise from Budapest to Amsterdam: "We went with two other people, a lady I used work with, and her husband". She said that she avoided going on shore excursions: "I stayed on the boat". She advised that some meals were shared with their travelling companions, whilst other meals were taken in their cabin. Whilst in London, Ms Chesher and her husband used a hop-on, hop-off sightseeing bus, and she said she was unable to use the Tube. She said that they had booked tickets to the Michael Jackson musical, "but I had a meltdown before". That said, she was able to sit through the entire show. Other planned events, such as visiting the Tower of London, did not proceed due to her psychiatric symptoms, whilst a visit to the top of Eiffel Tower did not proceed due to problems with one of her legs.
Ms Chesher's antidepressant medications have changed since she was assessed in April 2025. Some weeks prior to the present evaluation, she began taking another antidepressant, venlafaxine, initially at a dose of 37.5 mg daily, increasing this to 75 mg daily several days later. The dose was then increased to 150 mg daily around two to three weeks prior to the current evaluation. She began weaning her previous antidepressant, vortioxetine, some weeks ago, ceasing it prior to the present evaluation. She continues to take quetiapine, at a dose of 25 - 50 mg nightly, and estimated taking diazepam 2 mg twice a month. She continues to take perindopril 2.5 mg nightly.
Two weeks prior to the present evaluation, Ms Chesher was reviewed by her psychiatrist, Dr Sujatha Kalava. She recalled experiencing anxiety at that time.
Ms Chesher said that she is planning to consult Dr Kalava in two weeks, for review of her psychotropic medications. She advised that there has been some discussion about possibly increasing the dose of venlafaxine to 225 mg daily, depending on her symptoms.
3.     Findings on clinical examination
Ms Chesher presented as an Anglo-Saxon woman of stated age. She had a pale complexion, with mildly plethoric cheeks, and blond hair. She wore a                    light-coloured hooded top, and clear-rimmed glasses. She was polite and co-operative with the assessment, despite being obviously anxious. She readily answered all questions. She made eye contact through the video-conferencing platform.
Ms Chesher's speech was spontaneous, fluent, and normal in rate and form. There were some pauses prior to, or during response to, questions. Her affect was mildly limited in range. She retained the capacity to smile, however, did so briefly. Her subjective mood was anxious and depressed. She was not objectively irritable, apathetic or elevated in mood. Ms Chesher's thoughts were logically and sequentially organised - there was no observed formal thought disorder. No delusional thought content was expressed or observed at any stage.
Ms Chesher was alert and oriented throughout the assessment. She did not appear drowsy at any point. No fluctuation in level of consciousness was observed at any point. She was able to persist and maintain the pace of the assessment, which lasted over 80 minutes.
4.     Results of any additional investigations since the original Medical Assessment Certificate
Not applicable
Functional assessment at the time of the current evaluation
Self-care & personal hygiene rating:
Ms Chesher advised she bathed three times per week, and brushed her teeth daily. She said she washes her hair weekly, and goes to the hairdresser every three months. She commented, "I wear the same thing [clothing] because I'm just around the house", estimating she changed clothes twice a week. She advised she does not require assistance to attend to personal hygiene.
Ms Chesher commented her husband does the household cooking at present. She stated, "I snack all day now".
I would rate this as a Class 3.
Social & recreational activities rating:
Ms Chesher attended a musical in London within the last few months. Whilst on her river cruise in April 2025, she shared some meals with her travelling companions. She said she did not undertake the shore excursions on the cruise. She undertook some sightseeing in April 2025, including visiting the Eiffel Tower; she was not able to visit the Tower of London, due to her anxiety. She used a hop-on-hop-off sightseeing bus in London. All activities were undertaken in the presence of her husband; she was not able to undertake some activities even with her husband present.
In Australia, Ms Chesher advised she did not undertake leisure activities without her husband: "I do like going for walks but I won't go by myself", estimating she walks with her husband 2 - 3 times/week. She will go for a meal out of the home "a couple of times a year", with family. She said she drops into visit her parents once a week. I would rate this as a Class 3.
Concentration, persistence & pace rating:
Ms Chesher reported subjective impairment in concentration.
Ms Chester was able to persist with, and maintain the pace of, the interview for over 70 minutes before asking how much longer it would be. She did not present as easily distracted during this time.
Ms Chesher commented,
"I like to read when I'm calmer", adding, "I put on calming music" to achieve this stage, adding, "I've got to be in the right state of mind". She said that her capacity to read varies: "I can go for months without being able to read", but at other times, "Maybe I might read for a week or so... I might read ferociously for a week." Estimating on these occasions, she could read for an hour at a time.
Ms Chesher said that if she watches a movie, she splits it up over two or three days, due to her concentration. She said she is able to watch TV shows, such as the 'Gilmore Girls', advising she could watch an entire episodes. [According to Wikipedia, episodes of the Gilmore Girls run 39 - 45 minutes].
Ms Chesher advised she no longer cooks. When asked what she would prepare if she had to, she said she would use a frozen dinner if her husband was unable to cook.
Ms Chesher was able to recall her 10-digit mobile phone number when asked for her contact details at the start of the interview.
Whilst some degree of variability is reported by Ms Chesher, the capacity to read for up to an hour, and do so on multiple occasions for a up to a week, is consistent with a Class 2.
Summary
Ms Chesher is a 61-year-old woman who has been diagnosed with DSM-5 Generalised Anxiety Disorder. In light of significant alcohol consumption, and the consequences thereof, up until six and a half years ago, she meets DSM-5 diagnostic criteria for Alcohol Use Disorder in sustained remission.
Ms Chesher's symptoms have persisted for many years, despite the use of antidepressant medication.
The Appeal Panel adopts the report and findings of Medical Assessor Lam-Po-Tang.
The Appeal Panel assesses the appellant as Class 3 for self-care and personal hygiene, Class 3 for social and recreational activities, and Class 2 for concentration, persistence and pace. The assessment of Class 2 for travel, Class 1 for social functioning and Class 3 for employability was not appealed.
The Appeal Panel finds that the PIRS scales score 3 3 2 1 2 3, ascending order 1 2 2 3 3 3, median 3, aggregate 14 so that the WPI = 13%.
The Appeal Panel noted that the Medical Assessor deducted one tenth for a pre-existing condition and added 1% WPI for effects of treatment. As this deduction and the addition were not appealed, the Appeal Panel have deducted 1.3% which results in 11.7% and that is rounded up to 12%. The Appeal Panel then added 1% WPI for effects of treatment. The combined total WPI is therefore 13% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on 8 April 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:	W188/25
Applicant:	Rosemary Chesher
Respondent:	Chemico Holdings Pty Limited

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Dr Ankur Gupta 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/psychiatric	24 September 2019	Chapter 11	excluded	13%	1/10^th	12.7% rounded up to 13%
Total % WPI (the Combined Table values of all sub-totals)					13%

[2025] NSWPICMP 638

26 August 2025