Colver v State of New South Wales (NSW Police Force)
[2025] NSWPICMP 578
•7 August 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Colver v State of New South Wales (NSW Police Force) [2025] NSWPICMP 578 |
| APPELLANT: | Daniel Colver |
| RESPONDENT: | State of New South Wales (NSW Police Force) |
| APPEAL PANEL | |
| SENIOR MEMBER: | Elizabeth Beilby |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | Graham Blom |
| DATE OF DECISION: | 7 August 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appeal based upon incorrect assessment of three psychiatric impairment rating scale (PIRS) categories; Appeal Panel formed the view that a re-examination was necessary; Held – MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 15 November 2024, Daniel Colver lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Himanshu Singh, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 18 October 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant sustained an accepted psychological injury with a deemed date of injury on
9 August 2022. A claim was then made for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 in respect of a 24% whole person impairment, (relying on the assessment of Dr Graham George in a report dated 30 August 2023). The claim was disputed on the grounds that the relevant 15% whole person impairment threshold was not reached, the respondent relying on the opinion of Dr Malik in his report dated 4 March 2024 with a whole person impairment assessment of 8%.The claim in respect of whole person impairment was referred to Medical Assessor Singh who assessed the applicant and certified the applicant had suffered 9% whole person impairment by way of MAC dated 18 October 2024.
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 worker should undergo a further medical examination because in respect of one of the categories appealed against, the reasoning process of the Medical Assessor was not clear enough to be followed in order to consider the submissions in relation to the appeal grounds. Accordingly, there was a further medical examination by Medical Assessor Hong on 5 June 2025.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a) statement of the appellant dated 9 November 2024.
The appellant makes no primary submissions in relation to admission of the statement save for obliquely stating that the evidence was not available because it is in response to the MAC.[1]
[1] The appellant appears to rely on the statement dated 9 November 202 in relation to its submission saying that the PIRS assessment is in error as it does not reflect the appellant’s present circumstances.
In Lukacevic v Coates Hire Operations Pty Limited Hodgson JA, (Handley AJA agreeing, Giles JA dissenting) said at [78]:
“A dispute by the worker as to the history set out in the certificate, or the observations made by the AMS, can readily be raised; and it could be raised honestly or dishonestly, on strong or flimsy grounds. Having regard to the matters I have set out, in my opinion it would be reasonable for an AP [Appeal Panel] not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act.”
The Appeal Panel observes that there are many authorities which caution admission of evidence as sought by the applicant such as Petrovic v BC Serv No 4 Pty Limited t/as Broadlex Cleaning Services.[2] The caution that was expressed by his Honour Justice Hoeben on the basis that if such applications and further statements were allowed, “it would be open to every dissatisfied party to challenge the assessment process of an AMS in the same way thereby gaining automatic access to an appeal.”
[2] [2007] NSWSC 156.
The Appeal Panel considers that the additional statement should not be accepted into evidence on the basis that it merely appears to cavil with the Medical Assessor’s findings on examination and ought not be allowed.
The Appeal Panel has considered the statement dated 9 November 2024 and has formed the view that it should not be admitted into evidence. This statement, though not lengthy, appears to cavil with the history taken by Medical Assessor Singh. The statement effectively provides further detail in relation to self-care and showering, preparing meals and social attendance, marital relationship and his relationship with his parents.
The Appeal Panel has formed the view after considering the statement that the probative value of the statement is limited. The evidence is self-reporting evidence that cavils with the history taken by the Medical Assessor only.
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 Michael Hong of the Appeal Panel conducted an examination of the worker on 5 June 2025 and reported to the Appeal Panel. The Appeal Panel has considered the detailed observations on examination and findings of Medical Assessor Hong and adopts the report without reservation.
Medical Assessment Certificate
The appellant appeals in relation to three psychiatric impairment rating scale (PIRS) categories, that is, Social functioning, Social and recreational activities and Self-care and personal hygiene.
The relevant parts of the MAC are:
·The severe anxiety stopped him from doing things and from leaving the house (page 3);
·He barely leaves the house to attend psychologist and general practitioner (GP) appointments which are just down the road, and his psychiatrist is at St John of God, Richmond where he goes with his wife or a friend. He described a poor relationship at home which has affected him, his wife and his children (page 3);
·Mr Colver stated that he is continuously in a state of startle and hypervigilance. That is why he tries to avoid any external situations, being outside in public or around people which may trigger him. He also stated that he has lost interest in a lot of activities, and he feels detached. He is irritable and angry for no reason towards his wife and his children. This has affected his relationship. He is in a state of hypervigilance when he must leave the house. He stopped going for a walk around the lake as it was too busy, and he would start thinking what others were doing. He would get upset with general disregard in people or lack of general manners (page 4);
·He does not enjoy things. He may walk his dog at times and play tennis (page 5);
·He continues to present with symptoms which are ongoing and with symptoms meeting the criteria of a DSM-5 diagnosis of post-traumatic stress disorder and major depressive disorder along with alcohol use disorder;
·Self-care and personal hygiene – Class 2. Mr Colver does get prompted by his wife occasionally. He lacks motivation to shower if he is not going anywhere. He does not have breakfast and may have something in the afternoon. He may have dinner every now and then. He would start drinking in the afternoon. He does not eat that much. He may start with beer or a bottle or red wine. He drinks every day. He is a non-smoker and is not using any drugs. He has been low in appetite. He may cook something in the afternoon which is simple and is not cooking regularly. He may put some rice in the cooker and throw some tuna in and may eat it. He spends most of the time at home on his own and may spend some time in the garden and do some house chores (page 10);
·Social and recreational activities – Class 2. Mr Colver was much better five years ago. He only sees one friend who used to be his neighbour. He would walk together at times and play tennis with him once every two to three weeks. He mostly prefers to stay at home. He used to have regular barbecues and enjoy time around the pool. He does not enjoy that. He is not attending any social events, and his wife goes without him. A year ago, he was enjoying surf ski at one point which turned very negative, and he stopped doing it. He may attend the garden at home. He used to have a much broader social life. He has stopped playing poker as well which was a weekly event. He goes to play tennis which is around 1.5km away and may ride a bike or get picked up or drives, which is a two minute drive (page 10), and
·Social functioning – Class 2 Mr Colver described his relationship with his wife as up and down. He stated that “we may cohabitate. If we don’t get along, we don’t talk”. He may go and stay in another room in the house. He has been trying to keep things together and it is a mixed bag. They may have arguments at home. There is no domestic violence. He has stayed in different rooms in the house; however, there was no period of separation. He does not talk much to his mum and dad. His son is 17 years old. His relationship with him is non-existent and his relationship with his daughter is ok, who is currently 15. He did not used to speak to his stepdad even before and he stopped speaking to his mum in the last year or so. He is not talking to anyone he used to work with and has lost all his work friends. He has only one friend who may ring him and he may speak to him, and he is the one with whom he plays tennis and who used to be his neighbour (page 11).
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 considered the submissions made by both parties in this Appeal.
Paragraph 1.6(a) of the NSW workers compensation guidelines for the evaluation of permanent impairment (the Guidelines) provides that: “Assessing permanent impairment involves clinical assessment of the respondent worker as they present on the day of the assessment taking into account the respondent worker’s relevant medical history and all available relevant medical information …”
In order to have the MAC revoked, the appellant must demonstrate that the Medical Assessor applied incorrect criteria or that the MAC contains a demonstrable error (1998 Act, ss 327(3)(c)-(d)).
Campbell J in Ferguson v State of NSW & Ors [2017] NSWSC 857 (Ferguson) set out the relevant principles as:
(a) if the categorisation was glaringly improbable;
(b) if it could be demonstrated that the AMS was unaware of significant factual matters;
(c) if a clear misunderstanding could be demonstrated; or
(d) if an unsupportable reasoning process could be made out.
In Parker v Select Civil Pty Ltd [2018] NSWSC 140, Harrison AJ said, “In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense.”
We will now turn to each of the three categories in which the appellant submits error has occurred.
Self-care and personal hygiene
Table 11.1 of the Guidelines provides the following categories for Self-care and personal hygiene:
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 appellant submits that a Class 3 finding should have been made and not a Class 2.
The appellant in its submissions relies upon the supplementary statement that has been prepared, which the Appeal Panel has rejected.
The history taken by the Medical Assessor is fairly detailed on this issue. The appellant submits that the finding of a Class 2 does not reflect the appellant’s self-care and personal hygiene history.
A Class 2 finding is consistent with the history taken by Dr Malik in his report dated
4 March 2024 where he recorded ‘[the appellant] tells me he shares cooking with his wife, he tells me his wife works fulltime so he tries to help with house chores.’ The appellant relies on the opinion of Dr George who makes a Class 3 assessment, relying on a history of “struggles with self-care activities and there have been times where he does not shower or put on fresh clothes as required. There have been times where he has had poor sleep hygiene and poor diet.”The Medical Assessor is able to rely upon his own observations in the assessment. The observations made by Medical Assessor Singh were that the appellant appeared clean and dressed appropriately. His hair was done. The Appeal Panel observes that this is inconsistent with someone who lacks care for his appearance. Whilst the appellant quite clearly does rely on the occasional prompt to adequately take care for himself, this is not a descriptor of a person who is dependent upon someone else for regular assistance. Further, the evidence does disclose that the appellant does prepare some of his own meals and whilst these may be simple, he is still able to do it. This again is indicative of a mild impairment.
After considering the evidence in the submissions, the Appeal Panel can find no error in a Class 2 assessment in respect of self-care and personal hygiene.
Social functioning
Table 11.4 of the Guidelines provides the following categories for Social functioning:
Class 2- Mild impairment: Existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Class 3- Moderate impairment: Previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.
The appellant submits that a Class 3 finding should have been made and not a Class 2.
In respect of social functioning, one of the complaints made by the appellant is that he lives in a different part of the house than his wife. It was therefore submitted that this is a period of separation as described in the Class 3 classification.
The Appeal Panel does not agree that such separation as described by the appellant is appropriately classed as a Class 3 indicator. It is a mild impairment, though it indicates that the marital relationship was strained, it does not appear to be “severely strained or the like”. They are still living in the same house. Further, the appellant has a reasonably good relationship with his daughter, and he has a friend who he can play tennis with and a neighbour with whom he has some form of contact.
In addition, the STAIR termination report written by Kaitlin Greenaway on 21 June 2024 noted Mr Colver reported improvement in the range of wellness-related goals, improved in engaging with his wife and other family members, and felt more confident to communicate.
It was on that basis that the Appeal Panel has formed the view that the classification of Class 2 in relation to social functioning is quite appropriate and there is no error that can be disclosed in that assessment.
Social and recreational activities
Table 11.2 of the Guidelines provides the following categories for Social and recreational activities:
Class 2- Mild impairment: Occasionally goes 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 appellant submits that a Class 3 finding should have been made.
The Panel has formed the view that a clear path of reasoning has not been shown in this PIRS category. That is, there is a frequent use of subjunctive tenses which makes it difficult to understand whether the Medical Assessor is talking about the past or the present. Whilst the Appeal Panel notes that there is no evidence that the appellant actually requires a support person to attend any engaged activities, (although this is not completely clear) the issue really is how often these activities occur.
Whilst neither party sought a re-examination, the Appeal panel has formed the view that one was required so that the underlying assumptions relied upon by the Medical Assessor could be examined. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law,[3] it was on this basis that the Appeal Panel determined that the appellant should be re-examined and this examination was performed by Medical Assessor Hong on
5 June 2025.[3] Wingfoot Australia Pty Ltd v Kocak [20130HCA 43; (2013) 252 CLR 480.
The Appeal Panel has considered the reasoned opinion of Medical Assessor Hong and adopts its findings, which were for a Class 2 in respect of social and recreational activities. The descriptors as provided by Medical Assessor Hong in his report quite clearly outline a mild impairment as opposed to a moderate impairment. The Appeal Panel adopts the reasoning process and findings of Medical Assessor Hong in his respect.
The Panel further observes that Dr Graham George rated Class 3, in his report dated
30 August 2023, before the STAIR group programme. He said Mr Colver was withdrawn but was a close to a friend who is a neighbour. He goes to do surf-ski-paddling on the lake on occasions on his own and plays tennis with a neighbour. He refused invitations and would not go on vacations.Dr Nabil Malik, in his report dated 4 March 2024, rated Class 2 and said that Mr Colver played tennis with a friend, his wife, or the family. He at times goes to do ski-surfing. Under travel, he noted that Mr Colver had gone overseas a couple of times, to Tokyo and Bali, and also been to Perth.
The Panel has considered the overall evidence and noted that Mr Colver has different recreational activities with different people and was playing tennis occasionally if not regularly until the friend moved, and now he plays tennis with his wife, and this is not rare. The Panel noted tennis requires at least two people.
Mr Colver has also enjoyed other activities and overseas trips, which have a recreational element, and he also has some recreational activities on his own, without prompting or a support person, and can actively engage in them.
Taken all together, Mr Colver is able to actively engage in recreational activities appropriate for age, gender and culture. Some recreational activities are social; some are solitary without needing a support person or prompting. There is obviously a decline in the amount of engagement and social activities, but he still participates in recreational activities, which are not rare activities, and therefore is consistent with a Class 2 assessment.
It was on this basis that the Appeal Panel confirms the MAC.
For these reasons, the Appeal Panel has determined that the MAC issued on
18 October 2024 should be confirmed.
Re-examination report by Medical Assessor Hong
HISTORY RELATING TO THE INJURY
Brief history after MAC:
Mr Colver gave a brief history of his injury and said that he had been through many horrific jobs and thousands of car accidents, and that this had an accumulative effect and caused his PTSD. He unfortunately turned to alcohol and continued to drink an excessive amount.
Present treatment:
Mr Colver consulted psychologist Lisa Grauaug and treatment with her ceased in January 2025. He continues to consult Dr Jeff Bertucen, his psychiatrist, recently every 6-8 weeks.
He has been on the same psychotropic medications as when seen by Dr Himanshu Singh: Pristiq 200mg, Lamotrigine 200mg, Clonidine, Zopiclone and Melatonin. He said Lamotrigine increased over time.
His last group-based treatment was in 2024, and he had an admission around 18 months ago, at St John of God hospital at Richmond.
Mr Colver was meant to attend Dialectical behavioural therapy, however, due to traffic anxiety, he could not proceed with it in February 2025.
We discussed when he finished STAIR group-based treatment, his file noted he improved, with better socialization. Mr Colver said he was more comfortable with people who have similar psychological experiences and in the relevant timeframe felt good, however, once back home, the benefit did not last. We discussed that the psychologist wrote that his engagement with his wife and family were better, he said maybe, but could not recall if he said it or not. He said the relationship is still strained with his family.
Present symptoms:
Mr Colver has chronic anxiety and depressive symptoms and there are good and bad days, and this has not changed since Dr Singh's assessment. He has trauma symptoms with sleep problems and nightmares, recently 3 times per week. He said he does not leave home much, due to his symptoms, and "negate it" by staying in comfortable places, e.g. at home.
Mr Colver has anger problems and said he masks his behaviour. He said suicidal ideation crosses his mind, but he would not do it. He has ongoing trauma memory and flashbacks. He has been forgetful and often distracted and said he does not read books now. Previously he tried reading, but he had to reread the same material. He no longer watches movies due to concentration difficulties. He uses phone reminders for important activities and writes everything down as a memory aid.
In terms of alcohol intake, he said he rarely has days without alcohol. He can drink a bottle of wine plus beer at night. He said his alcohol consumption has reduced since having psychologist treatment.
Social activities/ADL:
Mr Colver is 52 and lives downstairs in the same house as his family. His wife, 15-year-old daughter, and 20-year-old son live upstairs. He said that they purchased the property and had added the top level some years later.
He said his social circle has reduced. His good friend, a pilot who was a neighbour, has moved so their contact has reduced. He had other friends, but one moved to Tasmania, and he lost contact with another friend over time and said he does not want to socialize much. The pilot friend has been his main friend over the years. He has two great neighbours, but both moved. He said the pilot was a neighbour and they played tennis together.
He does not play social tennis, and said he was playing with the pilot friend until he moved in December 2024. Now, he plays tennis once a month with his wife.
In terms of surf skiing on the lake, he said he did it by himself a couple of times, around 3 months ago, and then maybe 12 months before that.
He walks the dog and sees an exercise physiologist weekly, with exercises at home or at the park.
In terms of trips away, Mr Colver reported going to Tokyo for 36 hours with the pilot friend, 12 months ago. He said they saw some places and caught the Tokyo train, had a couple of beers and ate some food, and then came back home, and recalled it was enjoyable. I asked him about Bali, he said it was in February 2024 for his anniversary, and he went with his wife. They stayed at the resort, and it was relaxing. He spent time around the pool and had some alcohol. They went to a beach nearby, and walked to visit the main shopping district, around 2-3 km from the resort.
Mr Colver's wife works, and his son is doing an apprenticeship, and his daughter is in year 10. He stays at home most of the time, some days he feels good and attends to the garden, and said he enjoys gardening.
He did more shopping previously but now prefers his wife to do most of it. He buys his alcohol. He cooks once a week for the family, usually he finds something from TikTok, e.g. a chicken and potato dish, start in a fry pan, then add sausages and then transfer to the oven. He uses a recipe from TikTok, which is sent to an app.
He likes listening to rugby league podcasts and watches TV show, NRL 360, but not movies.
FINDINGS ON PHYSICAL EXAMINATION
Mr Colver was assessed by video. He was at home during the assessment.
Mr Colver was bespectacled and had short greying hair and was unshaven. He engaged well with the assessment process. There was no psychomotor slowing or abnormal movements. He was mildly restricted in his affect range and reactivity. He smiled and laughed intermittently. He spoke spontaneously and readily. He was not thought disordered. At the end of the assessment, I asked for further information that may be relevant, and he said he met many people from SJOG hospital, he is the one with trouble with the process, and the process causes him anxiety.
SUMMARY
summary of injuries and diagnoses:
In summary, Mr Colver described having encountered many traumatic events over the years as a police officer and developed Post-traumatic stress disorder, major depression, and alcohol use disorder. His treatments are not substantially different, and his symptoms are not substantially different than when seen by Dr Singh in 2024. His psychological injury is permanent and stabilized.
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