Coles Supermarkets Australia Pty Ltd v Sirijovski

DETERMINATION OF APPEAL PANEL
CITATION:	Coles Supermarkets Australia Pty Ltd v Sirijovski [2025] NSWPICMP 614
APPELLANT:	Coles Supermarkets Australia Pty Limited
RESPONDENT:	Peter Sirijovski
APPEAL PANEL
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	Professor Nicholas Glozier
MEDICAL ASSESSOR:	Graham Blom
DATE OF DECISION:	15 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); the appellant submits that the Medical Assessor erred in his assessment of three of the psychiatric impairment rating scale (PIRS) categories; Held – Appeal Panel found no errors; appellant’s submissions did no more than urge a competing assessment; MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 2 June 2025 Coles Supermarkets Australia Pty Limited (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Douglas Andrews, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 8 May 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 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).

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because none was requested, and the Panel is satisfied that we have sufficient evidence before us to enable us to determine this appeal without any re-examination.

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.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor erred in his whole person impairment (WPI) assessment of three of the categories of the psychiatric impairment rating scale (PIRS), namely self -care and personal hygiene, social and recreational activities and concentration, persistence and pace (cpp).
In reply, the respondent submits that no errors were made.

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 respondent was referred to the Medical Assessor for assessment of WPI in respect of a primary psychological/psychiatric injury occurring on a date of injury of 22 June 2022.
The Medical Assessor obtained the following history:
“Mr Sirijovski commenced work with Coles in 2014 as a casual night shelf filler. He worked full-time until 5 or 6 years later, when he was made permanent part-time, with his hours reduced to 23. He requested further hours, but this was not offered. Eventually, over his protests, he was taken off nights. He was also required to work on the registers, a task for which he felt untrained. Mr Sirijovski alleges he was assaulted by a female employee who pushed a broom handle into his buttocks in front of customers. He complained to management, but nothing was done. In June 2022, while on the registers, he used his flyby card when customers own one. This was reported as a breach in the code of conduct, and he was dismissed. He has not worked in any capacity, paid or voluntary, since.”
The Medical Assessor continued as follows:
“Present treatment:
Treating clinicians:
General practitioner Dr Emilija Sokovlovska
Psychologist Ms Julie Trista Psychiatric medication: o mirtazapine 30 mg nocte.
Mr Sirijovski consults his general practitioner monthly for WorkCover purposes and ad hoc. He consults his psychologist once a month for supportive psychotherapy.
He had seen a psychiatrist, Dr James Heiner, a couple of times after his dismissal, but not in an ongoing way.
Mr Sirijovski stated that he had not improved since leaving work and said: ‘My problems are getting bigger, they are getting worse. It is a shadow that never leaves me: I can’t get rid of it.
He has not attended any mental health courses or been hospitalised.”
Present symptoms:
Mr Sirijovski has a pervasively low mood without diurnal variation. He suffers from anhedonia.
He is highly anxious and has somatic symptoms such as headache, chest pain and gastrointestinal upset.
He is bothered by intrusive thoughts about his perception of unfairness of his treatment at work and his difficult life circumstances. He has a strong sense of grievance, humiliation and shame.
He is irritable and prone to anger.
He has subjective problems with concentration, attention and memory.
He acknowledged thoughts of suicide and has contemplated means. He said that his general practitioner and psychologist are aware of this.
He has initial and middle insomnia. His sleep is often disturbed by intrusive thoughts and by pain.
He has lost his appetite.
He has no libido.”
When asked to provide “Details of any previous or subsequent accidents, injuries or condition” he said:
“Mr Sirijovski had an adjustment disorder or depression when he was dismissed from BHP more than a decade ago. He consulted psychiatrist Dr Heimer on a few occasions and took antidepressant medication for about a year. He recovered fully and had no further mental health problems until the incidents at Coles.”
The Medical Assessor continued:
“General health:
Mr Sirijovski has a pacemaker and thyroid condition. He described headaches, blackouts, numbness and chest pain. He said: ‘Sometimes I feel my heart is going to explode.’ He has gastrointestinal problems with frequent diarrhoea.
He has consulted his cardiologist, who has reassured him that his chest pain is anxiety-related.
He has hip and foot pain that he described as severe. I asked how this rated on a 0- 10 pain scale, where 10 is the worst imaginable pain, and he insisted that his pain was near 10/10.
His weight has fallen from 90 kg to 80 kg. At 180 cm, his BMI is 24.7, in the normal range.
His nonpsychiatric medications are thyroxine sodium and meloxicam.
Work history including previous work history if relevant:
Mr Sirijovski worked for BHP for about 35 years. He was dismissed, and successfully lodged a claim for unfair dismissal.
Social activities/ADL:
Mr Sirijovski lives at Cordeaux Heights with his wife of 36 years, Marika, and his 2 adult sons, aged 33 and 34.
His wife is currently unemployed. He wakes at about 5 AM and gets out of bed at about 6 AM. He said, ‘When I wake, I feel stunned, drunk.’
He showers daily, prompted by his wife.
He often sits on the couch during the day, feeling unmotivated to be active. About once a week, he does a small amount of housework, such as cleaning the carpet.
He no longer does gardening, which he previously valued and enjoyed.
He eats one or two meals a day. His wife has always been the primary cook, and Mr Sirijovski will limit meal preparation to simple things such as heating something or cooking eggs.
His wife usually does some grocery shopping, although he occasionally goes with her.
He watches the news on television briefly but said, ‘It upsets me, it gets on my nerves.’
He reads little and struggles with concentration. He can persist for less than 30 minutes.
He has no hobbies or projects.
Before his injury, he had a limited social life but visited or invited friends to his house. He has stopped seeing friends. He doesn’t want them to know he is unemployed or discuss his circumstances. Occasionally, he will go to a café with his wife.
He visits his mother every week or two to see how she is. She is independent in her daily activities. If he is having a good day, he may take her shopping.
He can drive himself independently in the local area. He is limited by anxiety and does not travel further afield.
He frequently argues with his wife, who now sleeps in a separate room. He argues with his sons, and they have told him that he is an embarrassment to them. There has been no domestic violence or separations. He said, ‘This has poisoned my marriage, my family.
His relationships with his mother, brother, and sister are good, although he sees his siblings infrequently.”
Findings on mental state examination were reported as follows:
“I assessed Mr Sirijovski via an audiovisual link for 100 minutes. He was in his solicitor’s office. The connection quality was adequate to do a comprehensive assessment. Via his solicitor, Mr Sirijovski had requested a Macedonian interpreter. Although he has lived in Australia for almost 50 years and has a reasonable command of English, he felt that a previous independent medical assessor had misunderstood him. However, he asked the interpreter whether she lived in the Wollongong area, and she said she did. He became upset and concerned about discussing the details of his life in front of her, although he had never met her. We discussed this and I suggested that he seek advice from his solicitor in the next room. He declined and said he wanted to proceed with the interview without an interpreter, which we did. There were no apparent problems with understanding each other.
He presented casually attired, unshaven, with longish, unkempt hair.
He appeared anxious and somewhat distracted during the interview. He described his depression. His affect was restricted, consistent with his stated mood and congruent with the interview content.
There were no apparent difficulties with memory, but he occasionally went off-topic, usually discussing aspects of his treatment by his employer or his perception of the bias of a previous assessor.
He responded to redirection or having questions restated. A few times during the interview, he lost his composure.
When asked at the end of the interview if he had anything else to add, he agreed that we had covered everything he could think of.”
The Medical Assessor summarised the injury as:
“My diagnoses rely on the Diagnostic and Statistical Manual – Fifth Edition (DSM-5), published by the American Psychiatric Association.
‘Persistent depressive disorder with an ongoing major depressive episode and anxious distress.’
Mr Sirijovski has all 9 described symptoms for a major depressive episode. His condition has been present for more than 2 years, warranting a persistent depression diagnosis. He has considerable anxiety.
He has multiple somatic symptoms and overvalued health concerns, warranting a somatic symptom disorder diagnosis.”
He added: “I found no inconsistencies in Mr Sirijovski’s presentation”.
The Medical Assessor assessed 22% WPI, adding:
“In my assessment of impairment, I take into account only Mr Sirijovski’s psychological symptoms, excluding any impairment related to his somatic symptoms.”
He then summarised the evidence before him and said:
“IME psychiatrist Dr Peter Whetton saw Mr Sirijovski on 22 August 2022 and 24 September 2024. He noted that Mr Sirijovski’s condition had deteriorated in the interim and was now suffering various somatic complaints. Dr Whetton diagnosed Mr Sirijovski with a persistent depressive disorder and determined a 19% WPI (classes 2, 3, 2, 2, 3 and 5).
IME psychiatrist Dr Peter Young, 3 February 2025, noted that Mr Young had seen a psychiatrist, Dr Heiner, who had diagnosed an adjustment disorder. Dr Young reported: ‘He reports that his principal concerns at the moment relate to pain which he describes as being very severe, often waking him through the night. He describes the pain as ‘unbearable and the worst pain imaginable’.
Dr Young stated that Mr Sirijovski found his hip and ankle pain ‘severe, ongoing and disabling.’ He noted that Mr Sirijovski presented inconsistently ‘with distress and aggrievement rather than a diagnosable psychiatric disorder.’ He diagnosed an adjustment disorder and determined a 7% WPI (classes 2, 2, 2, 2, 2 and 4).
Dr Young has diagnosed an adjustment disorder that is not in keeping with the severe symptoms of depression expressed by Mr Sirijovski. Contrary to Dr Young’s assessment, I found Mr Sirijovski to be consistent and credible.
Dr Young noted that Mr Sirijovski’s ‘principal concerns at the moment relate to pain’.
Mr Sirijovski stated that he had been misunderstood and misquoted by the IME. It was for this reason that he had initially requested an interpreter for his assessment today.
Dr Whetton and Dr Young found a mild impairment in self-care and personal hygiene, whereas I considered the impairment moderate.
Dr Whetton stated: ‘He said that he will care for himself, have a shower and brush his teeth however his ability to participate in ordinary household [sic] will depend on his mood at the time. He said that his anxiety symptoms prevent him from being effective in everyday tasks at home.’
And Dr Young: ‘Mr Sirijovski appears normally groomed, tanned and fit. He reports however that he has a lower standard of appearance and self-care than previously although he is able to provide regular care to his mother in order to support her activities of daily living. He is likely not significantly impaired however is certainly no more than mildly impaired.’
Mr Sirijovski neglects his appearance and appeared dishevelled at the interview. He frequently misses meals and has lost weight. He showers daily with prompting from his wife but has otherwise lost motivation. He will do a small amount of housework infrequently. He visits his mother weekly, but she is independent in her daily activities. His sons provide her with practical support, although Mr Sirijovski may take her shopping if he feels well enough.
Dr Young found a mild impairment in social and recreational activities, whereas
Dr Whetton and I considered the impairment moderate. Dr Young argued: ‘Mr Sirijovski reports he is less motivated to participate in activities such as gardening or socialising with friends, however this is principally due to factors such as lack of finances and pain rather than primary psychological injury. The impairment attributable to primary injury is no greater than mild.’
Dr Young correctly points out that Mr Sirijovski no longer socialises with friends. He rarely goes to a café with family. They celebrate family Christmas but not birthdays. He has lost motivation to garden. Lack of finances and pain contribute to his inactivity, but his mental state is such that he has lost motivation and interest. He avoids previous friends because he is ashamed of his circumstances.
Dr Young found a mild impairment in concentration, persistence and pace, whereas
Dr Whetton and I considered the impairment moderate.
Dr Young wrote: ‘Mr Sirijovski reports subjective difficulties with cognition that are not apparent by observation and have not been objectively tested psychometrically. He reports he is able to read for up to 30 minutes and he is capable to taking his mother shopping and to medical and other appointments, mowing her lawn etc. Cognitive functioning impairments if they do exist are also likely to be affected by secondary pain related effects and the primary impairment is likely to be minor and is certainly no more than mild.’
Mr Sirijovski has subjective problems with concentration, attention and memory. He has problems with focus were apparent during my interview. He reads for less than 30 minutes with poor retention. He can only watch television briefly. Occasionally taking his mother shopping or to appointments is not an intellectually demanding activity and is more relevant to the category travel.
Dr Young found a severe impairment in employability, whereas Dr Whetton and I considered Mr Sirijovski unfit. Dr Young stated: ‘Mr Sirijovski says he wants to return to work and would have been willing to accept his job back if he had not been unfairly dismissed. He is capable of working at least several hours per week in the first instance even allowing for deconditioning that may have occurred while he has been off work.’
Mr Sirijovski’s symptoms are severe and he has lost motivation. He is not worked in any capacity for the last 3 years and has moderate impairment in concentration, pace that would limit his ability.”

Discussion

The appellant submits as follows:
(a)    The Member [sic] did not provide a comparison of the respondent worker's presentation to Dr Whetton and Dr Young as compared to the presentation of the Medical Assessor and how the presentation has affected the assessment.
(b)    It is noted further that the Medical Assessor took a history from the respondent worker regarding his issues with the examination of Dr Young. It is noted that the respondent worker did not provide a statement setting out any concerns he may have had despite having the opportunity to do so, prior to the referral to the Medical Assessor. It is submitted that the appellant is prejudiced as it is not in a position to respond to the respondent worker's comments.
(c)    In dealing with the MAC itself, it is submitted that there is internal inconsistency between the history provided by Dr Whetton, Dr Young and the Medical Assessor and the assessment prescribed by the Medical Assessor.
(d)    The Medical Assessor recorded in part 5 of MAC Findings on Mental State Examination: "Mr Sirijovski was seen by video conferencing. He was casually dressed and appeared to be adequately groomed. He was well tended alert pleasant and cooperative throughout the interview. He presented casually attired unshaven with longish unkempt hair".
(e)    The Medical Assessor then goes on to describe the respondent worker's appearance as: 'neglects his appearance and appeared dishevelled at interview'.
(f)    The presentation of the respondent worker to the Medical Assessor is inconsistent with his presentation initially Dr Whetton and subsequently
Dr Young.
(g)    The Medical Assessor found no inconsistencies in the respondent worker's presentation as opposed to Dr Young who found the respondent worker presented in an inconsistent fashion.
(h)    The Medical Assessor has not compared the findings on mental state examination to that of the respondent worker's presentation to Dr Whetton and
Dr Young, in order to identify any inconsistencies in the respondent worker's presentation to him. Further the Medical Assessor has not explained the inconsistencies in the respondent worker's presentation to Dr Whetton and
Dr Young when compared to his own mental state examination.
(i)    In particular we note that the worker did not provide any statement addressing the concerns that he had with the examination and report of Dr Young.
(j)    In part 10 of the MAC, the Medical Assessor noted as follows: "Dr Young noted that Mr Sirijovski principal concerns at the moment relate to pain. Mr Sirijovski stated that he had been misunderstood and misquoted from the IME".
(k)    The appellant submits that it has been denied procedural fairness by not being informed by the applicant prior to the Medical Assessor examination that the respondent worker had any issues or there had been a misunderstanding regarding the history that he had provided to Dr Young.
(l)    If the respondent worker had provided a statement to the effect that he had been misunderstood and misquoted by Dr Young, the appellant would have obtained a further report from Dr Young as to whether or not the doctor had in fact misquoted the respondent worker in his report.

Dealing with the specific PIRS categories, the appellant submits:
1.    Self-care and personal hygiene
(a)The respondent worker's history to the Medical Assessor that he neglects his appearance and appears dishevelled at interview is inconsistent with his presentation to Dr Whetton and Dr Young.
(b)Further the Medical Assessor obtains no history from the respondent worker that he skips meals and has lost 10kg. The history provided is that the respondent worker eats one or two meals a day. Accordingly, the assessment for the PIRS category relating to self-care and personal hygiene, is inconsistent with the history obtained by the Medical Assessor.
(c)The appellant submits that the history obtained by the Medical Assessor is that the respondent worker should fall within Class 2.
(d)Class 3 is not an appropriate assessment noting the respondent worker acknowledges that pre-injury he did not prepare his own meals in any event and although he did acknowledge being able to cook simple meals, he can still attend to that task. It is noted further that the Medical Assessor although recording that the respondent worker skips meals, this is not referred to in the history taken
(e)Further the histories obtained by Dr Whetton and Dr Young clearly indicate that the respondent worker is able to live independently. There is no history obtained by the Medical Assessor that a family member or community nurse is required to ensure a minimum level of hygiene and nutrition.
2.    Social and recreational activities
(a)    The Medical Assessor has assessed Class 3 – he no longer sees friends or has structured social activities, has given up his past gardening, occasionally goes to the café with his wife.
(b)    The findings of the Medical Assessor are inconsistent with Class 3 and should be Class 2 noting the history taken that the respondent worker had limited social life pre-injury and that continues post injury.
3.    Cpp
(a)    The Medical Assessor's clinical findings on mental examination were that there were no apparent difficulties with memory but he occasionally went off topic, usually discussing aspects of his treatment by his employer or his perception of bias by a previous assessor. He responded to redirection or having questions restated.
(b)    Dr Whetton in the report dated 24 September 2024 assessed Class 2.
(c)    Dr Young in the report dated 3 February 2025, noted the respondent worker is able to watch television programs and is able to read about half an hour at a time.
(d)    The Medical Assessor noted that the respondent worker watches news on the television briefly but says 'it upsets me it gets on my nerves'. There is no evidence in the history obtained by the Medical Assessor that the respondent worker's limitation in watching the news on TV is related to psychological injury.
(e)    The history obtained that the respondent worker reads less than 30 minutes with poor retention is not consistent with the history provided to Dr Whetton or
Dr Young.
(f)    Further the Medical Assessor when reciting the social activities – ADL, does not obtain a history from the respondent worker that he finds it difficult to follow complex instructions or that he unable to read anything more than newspapers.
(g)    The appropriate class is Class 2 for concentration persistence and pace.
The respondent submits:
(a)    The medical dispute arose from the competing assessment of impairment offered by Dr Whetton for the worker and Dr Young for the employer.
(b)    The Medical Assessor’s statutory task was to undertake an assessment in accordance with the Guidelines.
(c)    The medical dispute arose from the competing assessment of impairment offered by Dr Whetton for the worker and Dr Young for the employer.
(d)    His job in undertaking the assessment was set out in Chapter 11 of the Guidelines. The Guidelines did not invite him to undertake an adversarial hearing (or any hearing) of the matter. The process is inquisitorial. It did not require him to choose between the competing opinions which were the basis of the dispute. It required him to apply his own clinical judgment to the application of the Guidelines. These are long established features of the process.
(e)    The appellant's case is largely founded on the proposition that the Medical Assessor did not take sufficient account of what other doctors had taken by way of history, and/or the observations that they had made. This was not his task.
(f)    The Guidelines state feedback from treating professionals may provide useful information to assist with the assessment (emphasis added). There was no particular direction in the Guidelines to the Medical Assessor to consider the histories and opinions of the qualified doctors at all.
(g)    Demonstrable error is said by the appellant to have been committed on a number of occasions. However, the only instance argued for in the submission is the alleged inconsistency of presentation to the qualified psychiatrists.
This cannot constitute demonstrable error for 2 reasons. The first is that it does not appear on the face of the Certificate. The second is that it could not constitute error in any event, given the nature of the statutory tasks being performed by the Medical Assessor pursuant to Chapter 7 of the 1998 Act.
(h)    A complaint is made regarding Procedural Fairness. The respondent worker has 2 responses. The first is that the submission does not identify whether and how this particular complaint falls within either of the nominated grounds pursuant to s.327(3)(c). This is probably because it cannot.
(i)    The second is that the impugned part of the history taking appears to be an instance of the Medical Assessor informing himself as to what might otherwise seem an inconsistency. He was exercising his right to undertake an examination pursuant to s 324 of the 1998 Act. Of its nature, a psychiatric assessment largely consisted of oral interaction with the respondent worker. That is all the Medical Assessor did. This cannot constitute error.
(j)    An examination of the appellant's arguments reveals no identification of assessment on the basis of incorrect criteria, merely a complaint that the Medical Assessor should have found otherwise.
(k)    Furthermore, the approach argued for by the appellant does not correctly acknowledge or apply the relevant principles. Its approach in respect of each of the challenged PIRS categories, attempts to show that the factual findings which it favours are not congruent with the examples contained in Tables 11.1, 11.2 and 11.5.
(l)    This approach overlooks the fact that these are examples only, as stated in the Guidelines.
(m)     It also overlooks that the assessment is of the behavioural consequences of psychiatric disorder (paragraph 11.11 Guidelines). An example of this misunderstanding is at submission at [43] regarding meal preparation before and after injury in respect of Self Care etc and at [52] where the appellant points to the worker's relatively limited pre-injury social life as warranting a limited assessment of his Social and Recreational Activity. If applied to employability, this logic would rate a worker incapable of more than 20 hours a fortnight of work as having no, or little impairment because his/her pre-injury job was part time for 10 hours a week.
(n)   The approach suggested by the appellant robs the Medical Assessor of any true exercise of expertise and clinical judgment. This cannot constitute the assessment being based on incorrect criteria.
(o)    The respondent makes the same submissions regarding the three PIRS categories the subject of appeal.

Discussion

The Panel agrees with the thrust of the respondent’s submissions for reasons that follow.
The appellant’s submissions focus solely on the difference of opinions regarding the assessments by the Medical Assessor, Dr Whetton and Dr Young.
Mere disagreement about the level of impairment is not sufficient to demonstrate error, and is not a proper basis for appeal.
In addition, cl 1.6 of the Guidelines provides: “Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment…”
Turning firstly to the category of Self-care and personal hygiene at the time of assessment, the Medical Assessor observed:
“Mr Sirijovski showers daily but requires prompting from his wife. He frequently skips meals and has lost 10 kg. He contributes little to household chores and no longer does the gardening. He occasionally may do a small amount of vacuuming. His wife prepares meals, which is her traditional role, and does most of the shopping. He would struggle to live independently.”
The examples provided by the PIRS are examples only per cl 11.12 of the Guidelines and “provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected” (Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633).
The descriptor for a Class 2 rating reads:
“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.”
For a Class 3 it reads:
“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.”
On the Medical Assessor’s observations at assessment, the respondent is unable to live independently such that in our view he clearly fits into a Class 3 rating in this category.
For these reasons, the appellant’s submissions with respect to this category fail.

Social and recreational activities

In assessing a Class 3 in this category, the Medical Assessor said:
“He no longer sees friends or has other structured social activities. He has given up his pastime, gardening. He occasionally goes to a café with his wife.”
The descriptor for a Class 2 reads: “Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).”
For a Class 3 it reads: “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.”
In his report dated 3 February 2025, Dr Young said:
“He is not engaged in any social or recreational activities and he says he is unable to participate in any social or recreational activities because of lack of money and because of pain symptoms. He said he does not go out with friends because of “anxiety and empty pockets.”
As the Medical Assessor observed:
“Dr Young correctly points out that Mr Sirijovski no longer socialises with friends. He rarely goes to a café with family. They celebrate family Christmas but not birthdays. He has lost motivation to garden. Lack of finances and pain contribute to his inactivity, but his mental state is such that he has lost motivation and interest. He avoids previous friends because he is ashamed of his circumstances.”
In other words, Dr Young in fact described a Class 3 rating with which the Medical Assessor concurred.
In assessing a Class 2 rating, Dr Young said:
“Mr Sirijovski reports he is less motivated to participate in activities such as gardening or socialising with friends, however this is principally due to factors such as lack of finances and pain rather than primary psychological injury. The impairment attributable to primary injury is no greater than mild.”
This is inconsistent with his earlier comments in the body of his report.
There is clear evidence that anxiety plays a significant part in the respondent’s ability to engage in various social and recreational activities.
In his assessment with respect to the category of Employability, the Medical Assessor observed: “He has severe symptoms of depression, lack of motivation, difficulty in trusting others and challenges with concentration.”
This assessment has not been challenged by the appellant.
In short, the “severe symptoms of depression [and] lack of motivation” would undoubtedly impose restrictions on the respondent’s social and recreational activities.
In addition, we note that the Medical Assessor said: “In my assessment of impairment, I take into account only Mr Sirijovski’s psychological symptoms, excluding any impairment related to his somatic symptoms.”
The Medical Assessor was clearly cognisant of the task before him and made his assessment with respect to the primary psychological disorder only.
For these reasons, the appellant’s submissions in this category again fail.
Turning now to the category of cpp, in assessing a Class 3 rating, the Medical Assessor said:
“He has subjective problems with concentration. He struggles to motivate himself to do any activity. He watches television for a few minutes before he becomes frustrated. He can read for less than 30 minutes but struggles with comprehension. Problems with attention and focus were apparent during my 100-minute interview. Mr Sirijovski needed redirection, and questions needed to be reframed several times.”
The descriptor for a Class 2 reads:
“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.”
For a Class 3 it reads:
“Moderate impairment: Unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg 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’s assessment in this category was consistent with the opinion of
Dr Whetton.
We also observe that the respondent’s treating psychologist noted cognitive problems.
Dr Young wrote:
“Mr Sirijovski reports subjective difficulties with cognition that are not apparent by observation and have not been objectively tested psychometrically. He reports he is able to read for up to 30 minutes and he is capable to taking his mother shopping and to medical and other appointments, mowing her lawn etc. Cognitive functioning impairments if they do exist are also likely to be affected by secondary pain related effects and the primary impairment is likely to be minor and is certainly no more than mild.”
Dr Young could say no more than cognitive functioning is also “likely to be affected by secondary pain” without any specific evidence in this particular case.
The Medical Assessor noted Dr Young’s opinion and said:
“Mr Sirijovski has subjective problems with concentration, attention and memory. He has problems with focus were apparent during my interview. He reads for less than 30 minutes with poor retention. He can only watch television briefly. Occasionally taking his mother shopping or to appointments is not an intellectually demanding activity and is more relevant to the category of travel.”
We agree with the Medical Assessor’s comments below,
“There is no statutory requirement for psychometric testing to be undertaken.
More importantly, as expressed by Member Carolyn Rimmer in Wright v Ngroo Education Incorporated [2022] NSWPICMP 106: ‘Concentration, persistence and pace is a category where the assessor can apply clinical judgment and considerable weight must be given to the assessor’s observations in the clinical examination. The assessor, during the clinical examination, is able to observe the worker’s ability to concentrate, assess persistence with the cognitive demands of the assessment, and observe the pace at which the worker can engage.”
The observations of Member Rimmer, whilst not binding, highlight the significance and probative value of the evidence obtained by a Medical Assessor on the day of examination when it comes to the cpp category.
In summary, a Medical Assessor is able to make assessments based on his expertise and experience that other rational minds might disagree with.
In our view, the Medical Assessor’s assessments were consistent with the evidence.
The Medical Assessor conducted a thorough and probative examination with respect to each of the PIRS categories, and clearly explained his reasons for his assessments in all categories.
The appellant seeks to cavil with matters of clinical judgment and the Medical Assessor correctly assessed him in all categories.
A Medical Assessor is able to make assessments based on his expertise and experience that other rational minds might disagree with.
For these reasons, the Appeal Panel has determined that the MAC issued on 8 May 2025 should be confirmed.

[2025] NSWPICMP 614

15 August 2025