Corrective Services New South Wales v Little

DETERMINATION OF APPEAL PANEL
CITATION:	Corrective Services New South Wales v Little [2025] NSWPICMP 645
APPELLANT:	Corrective Services New South Wales
RESPONDENT:	Kellie May Little
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Professor Nicholas Glozier
MEDICAL ASSESSOR:	Doug Andrews
DATE OF DECISION:	27 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal by employer from 21% whole person impairment (WPI); psychological injury; whether fresh evidence admissible; whether error made with respect to each classification in each of the psychiatric impairment rating scale (PIRS) categories; Held – fresh evidence (a desktop investigation) rejected; no application made to accept it; no explanation as to why it could not have been obtained prior to the assessment; many dates within report pre-dated assessment; observations as to procedure and section 289A of the 1998 Act and whether Appeal Panel has jurisdiction to entertain section 289A(4) application; Medical Assessor contradictory in reasons for self-care and personal hygiene and unclear in reasoning for employment category; ratings therein reduced; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 26 March 2025 Corrective Services New South Wales, the appellant employer, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ash Takyar, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 26 February 2025.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
·        availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
·        the assessment was made on the basis of incorrect criteria, and
·        the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5). “WPI” is reference to whole person impairment. “Baseline WPI” is a reference to the total WPI assessed before deduction for the effect of pre-existing injury, condition or abnormality pursuant to s 323 of the 1998 Act.

RELEVANT FACTUAL BACKGROUND

On 6 December 2024 this matter was referred to the Medical Assessor for an assessment of WPI caused by psychiatric and psychological disorders which occurred on “2 February 2021”.
Ms Little was employed as a Senior Correctional Officer/Acting Intelligence Officer by the respondent. Ms Little, in her capacity as an Acting Intelligence Officer reported that one of the psychologists in the prison was having an inappropriate relationship with an inmate. She reported to management but later found out that the psychologist's husband was also a manager in the prison.
Ms Little's Acting Intelligent Officer role was revoked and the evidence in her report of the incident was destroyed, with the psychologist concerned being promoted.
A second incident occurred on 1 February 2021 when another female officer found Ms Little's husband's images on Tinder, and broadcast that information to her colleagues but not to
Ms Little.
She was unsupported by senior management and originally ceased working in February 2022.
She attempted to return to work in August 2022 but ceased in October 2022 as she was expected to keep working with the female colleague who had publicised the Tinder details.
The Medical Assessor assessed 21% WPI.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination, notwithstanding that error was made by the Medical Assessor. The error consisted of inappropriate ratings being assessed on unchallenged evidential material about which a re-examination would not have assisted the Panel.

Fresh evidence

Section 328 (3) of the 1998 Act provides:
“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.”
The appellant employer seeks to admit the following evidence:
(a) Desktop Investigation Report dated 14 March 2025.[1]

Submissions as to fresh evidence

[1] Appeal papers page 18.

Appellant employer

The appellant employer submitted at [2.1(c)] of its submissions:
"The respondent now has obtained additional relevant information which was not available to it prior to the time of assessment, nor was it capable of being obtained. We will refer to this information throughout the below submissions."
The appellant employer then made its substantive submissions concerning the MAC itself and made no other reference to any basis on which the Desktop Investigation should be admitted.

Respondent worker

Ms Little objected to the admission of the additional evidence. She submitted that the Desktop Investigation failed to meet the requirements of either s 327(3)(b) or s 328(3) of the 1998 Act. She submitted that it had not been shown that the evidence was not available and could not reasonably have been obtained by the appellant employer before the medical assessment.
Ms Little acknowledged that the date of the Desktop Investigation, being 14 March 2025, was after the date of the medical assessment on 26 February 2025, but there was no explanation by the appellant employer as to why that report could not have been sought prior to the assessment, which Ms Little said was a reasonable proposition.
Ms Little submitted further that the appellant employer did not identify when the Desktop Investigation Report was commissioned but that it was on notice from 9 February 2021 that the injury had occurred by way of an Injury Report Form, and that Ms Little had been assessed by the appellant employer’s medical expert on 5 April 2024.
The principle of finality in litigation was referred to by Ms Little and it was submitted that the parties should not be allowed the opportunity to obtain “endless reports or evidence about issues that have been well known for an extended period of time.”
In the alternative Ms Little submitted that she should be afforded the opportunity to rely on further statement evidence, and indeed she lodged a statement dated 16 April 2025.[2]
[2] Appeal papers page 31.

The Desktop Investigation

As indicated, the report was dated 14 March 2025 and it consisted of the results of searches made on social media and the results of investigations into Mr Little’s life online.[3] The dates are few and far between. There are 12 likes with the date 8 December 2024,[4] and some photographs on a website called TradieLady.au. One is dated January 11 without a year,[5] and another photograph dated 17 February again without a year.[6] There was a further photograph on the same page with the date 12 February with no year attached to it.
[3] Appeal papers page 19.
[4] Appeal papers page 19.
[5] Appeal papers page 20.
[6] Appeal papers page 21.
Against a Facebook page there is an advertisement for Amore Resin Art and Supplies which attached the date 5 October 2024.^[7]
[7] Appeal papers page 22.
The investigators also found a LinkedIn site, the date on which showed that Ms Little joined in May 2024.
We note that there was some redaction at various points of the report where a website was indicated.
The investigators had also written that searches revealed connection to 78 Ascot Drive Chipping Norton and beneath that was a reference to Kelly May Mafrici with a date saying Dec 2020.
A picture of that address was also attached which indicated that a green utility pictured. It was on an Instagram post, dated 5 October 2024. There was also a picture of Ms Little (we assume) in front of the green utility which had a date 5 October 2024.[8]
[8] Appeal papers page 24.
A search of the individual/sole trader ABN in Ms Little's name showed that she had a current ABN from 2 October 2024.

Discussion re fresh evidence

We reject the “application”. Firstly no submissions were made as to why this investigation had not been obtained prior to the medical assessment. We are surprised that no formal application was made.
The medical assessment took place on 26 February 2025 and many of the dates that we have referred to within the investigation report pre-dated that consultation. There is no explanation as to when the report had been commissioned nor why it had not been obtained prior to the medical assessment.
We note the submission made by the appellant employer that “there is a video dated 17 February 2025 showing [Ms Little] operating power tools.[9] No video footage was before us, and as we indicated, there was no year on the 17 February photograph. There was reference to a ‘video post’” at page 20, but the wording immediately preceding it had been redacted.
[9] Appeal papers page 14.
The appellant employer’s attempted use of this material raises a further problem. It is clear that the purpose of the additional evidence was to damage Ms Little’s credit, by attempting to prove that she was considerably more active than she represented to the Medical Assessor.
This issue had not been raised. The s 78 Notice was dated 27 April 2023, and the denial was based solely on the premise that Ms Little had not established that she had a WPI of 15%, by reference to the report of Dr Nagesh of 5 April 2023.
Section 289A of the 1998 Act provides:
“(1)    A dispute cannot be referred for determination by the Commission unless it concerns only matters previously notified as disputed.
(2)     A matter is taken to have been previously notified as disputed if-
(a) It was notified in a notice of dispute under this Act or the 1987 Act after a claim was made or a claim was reviewed, or
(b) It concerns matters, raised in writing between the parties before the dispute is referred to the President for determination by the Commission, concerning an offer of settlement of a claim for lump sum compensation.
(3)     The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission. However, the Commission may hear or otherwise deal with a matter subsequently arising out of such a dispute.
(4)     Despite subsection (3), a dispute relating to previously unnotified matters may be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so.”
It follows that to raise this issue, an application pursuant to s 289A(4) would be required. There is no jurisdiction for this to be attended by either a Medical Assessor or, relevantly, an Appeal Panel. A Panel’s procedural jurisdiction is confined by s 328 of the 1998 Act, which states relevantly:
“….
(2) 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.
….
(5) The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate.”
It is accordingly a moot point as to whether a Panel has power to make an order pursuant to s 389A(4), or to proceed without such an order having been made.
The fresh evidence is rejected.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.

Medical Assessment Certificate

The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

Both parties made written submissions which have been considered below by the Appeal Panel.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The appellant employer challenged every classification assigned by the Medical Assessor to the six categories of the Psychiatric Impairment Rating Scale (PIRS), as to which, the following is relevant:

The psychiatric impairment rating scale (PIRS)

The PIRS is established as the rating system for assessing psychiatric/psychological impairment, by virtue of Chapter 11 of the Guides. Chapter 11 sets out six categories of behaviour to be considered, each being divided into five classes, ranging in seriousness from 1 to 5. Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired.
Chapter 11.12[10] provides:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
[10] Guides page 55.
The Medical Assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11[11].
[11] See 11.15-11.21 at Guides page 65 and Table 11.7 at Guides page 66.
The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[12] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the AMS had been glaringly improbable. His Honour found that the Panel had fallen into jurisdictional error. He said at [23]:
“By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:
‘… the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’.
24. The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
25. The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales[13]. The Appeal Panel said ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’: Appeal Panel reasons at [37].”
[12] [2017] NSWSC 887.
[13] [2015] NSWSC 633.
In Glenn William Parker v Select Civil Pty Ltd,[14] another case regarding assessment of psychiatric disorder, Harrison AsJ cited [23] of Ferguson with approval at [65]. Her Honour said at [66]:
“In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense. (Ferguson [24])…..”
[14] [2018] NSWSC 140.
In Jenkins, Garling J said at [73]:
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
It is accordingly necessary for the Panel to be satisfied that the assessment by the AMS in this category was erroneous in one of the following ways (to use the reference by Campbell J in Ferguson):
(a)    if the categorisation was glaringly improbable;
(b)    if it could be demonstrated that the AMS was unaware of significant factual matters;
(c)    if a clear misunderstanding could be demonstrated; or
(d)    if an unsupportable reasoning process could be made out.
In Lancaster v Foxtel Management[15] Basten AJ noted at [88-89] that these four considerations, although not inaccurate, were not a statement of legal principles, and that care should be taken in applying the explanation in place of s 327(3) and s 328(2).
[15] [2022] NSWSC 929.
In Masters v Healthshare NSW[16] Griffiths AJ considered Campbell J’s dicta in Ferguson, saying at [35]:
“…. [T I reject the submission that the Panel’s review is confined to cases where the Medical Assessment, or some aspect of it, is “glaringly improbable”. The submission finds no support in the wording of the WIM Act, which requires only that an error be “demonstrable” or that there be “incorrect criteria”. These expressions, which have been the subject of judicial consideration (see above), are to be understood in accordance with their plain meaning. It appears from Ferguson v New South Wales at [24] (Campbell J) that the Medical Panel in its reasons used the expression “glaringly improbable”. It would be a misreading of Campbell J’s reasons to conclude that his Honour intended to suggest that the expression formed any part of the test for error in the context of ss 327 or 328]he proposition that the Appeal Panel was required to determine whether Dr Smith’s assessment was “glaringly improbable” is inconsistent with the observations of Adamson J (as her Honour then was) in Chalkias v New South Wales [2018] NSWSC 1561 at [29], in which her Honour discussed Ferguson (with which I respectfully agree).”
[16] [2025] NSWSC 821.

The MAC

It is convenient to refer to the Table 11.8 PIRS rating form compiled by the Medical Assessor at the end of his assessment regarding each category, as the reasons there given simply repeated the findings from the body of his report within the Table.[17] It is also convenient to deal with the challenge to each category individually, and in the order that they appear in the Guides.
[17] Table 11.8 form at appeal papers page 56.

Self-care and personal hygiene

The Medical Assessor assessed a class 3 rating for this category. He said:[18]
“Ms Little lives with her three children - a son (9), and twins (8, a boy and a girl), as well as "lots of cats... probably seven" - she feeds them and tries to give them chores (including feeding, from what she described), and she noted that if she forgets, the cats "remind me". Her son's dog escaped last week - asked thrice due to concentration lapsing she finally said she feels upset it has gone but without impacts on her depression or anxiety.
A history was obtained of her typical daily routine on an average day in the last two months - Ms Little said her alarm sounds at 7:40 and she snoozes for 10 minutes due to depressive symptoms, including fatigue. Once up, she goes to the bathroom, puts her contact lenses in, goes downstairs and checks on her children (that they are dressed), makes their lunches and puts them in the car to take them to school by 8:30am (a 5 minute drive), then returns directly home. She said she sits on her bed, might have a coffee or something to eat, showers, returns to bed and smokes a cigarette, thinking about what she will do in her day, "and before you know it, it's time to pick them up from school and I've got little to nothing done". She showers (reporting that she sometimes forgets) and said her parents' home is old and she might work on or paint it (once/twice an hour as it "gets my mind off things''). She added, "I try to survive cos everyone yells at everyone and fights a lot, it's hard". Once the children return home she tries to get them out of their uniforms, sometimes does the washing and she tries to get them to do some chores, such as washing up around them. They go to bed around 8:30pm - she said she does half the time, otherwise remaining awake to up to 3am.
Pre-injury, she cooked ‘Not very often because my husband... was a chef' - asked about nowadays (thrice), she reported cooking nightly but finds it ‘definitely’ more difficult due to depressive symptoms. She attends to chores usually (then mentioned that her partner also lives with her, and he does them sometimes, or the children might at times). Pre-injury, her husband did most of the shopping, but she now does ‘cos I have to... maybe two or three times a week. I try to do one big one, but I forget things. I hate grocery shopping... it's so expensive these days’ - the anxiety she experiences is about having sufficient funds to pay for things as at times she has had to remove items when she cannot pay for them; she also reported feeling on edge and nervous at the supermarket.
Where she ate three meals and a snack before the injury, she now eats ‘one, one and a half', which has been so for around a year. She enjoys food less, no longer goes out for dinners and portions are mostly smaller, sometimes larger-with weight gain of 5-10kg since the injury. She showered 1-2 times a day pre injury, which has reduced: ‘sometimes once a day, but sometimes I forget’ (‘a few times a week’), usually showering 4 times a week and missing days as she ‘can't be bothered, or memory, or just not in the mood Clothes are changed every two days (daily pre-injury) and she misses brushing her teeth ‘a few times a week, three times, four times’ - not brushing at all 3 days of the week.”
[18] Appeal papers pages 45 and 56.

SUBMISSIONS

Appellant employer

The appellant employer reproduced the entirety of the above findings. It referred to the opinions of the experts retained from both parties and noted that a class 2 rating had been given for this category by both. The histories recorded by the experts both reflected that
Ms Little was involved in domestic duties and could care for children. A new statement within the ARD however indicated that whilst she was still involved in domestic duties, she relied on her husband to do more of these tasks. The appellant employer alleged that this assertion was contradicted later in this new statement, where she commented that her marriage had ended because she could not cope.
The appellant employer noted that the Medical Assessor recorded that Ms Little had subsequently re-partnered, and that her new partner resided in the family home and provided assistance with chores.
This in turn, it was suggested, was contradicted by a finding by the Medical Assessor elsewhere within the MAC that described the new relationship as “on and off.”
We were referred to the class 3 descriptors for this category. It was submitted that Ms Little had “significantly altered her history” as what she told the Medical Assessor was inconsistent with what she had told Dr Nagesh, the appellant employer's expert medical witness.

Ms Little

Ms Little submitted that the appellant employer had not been clear, but it appeared that it’s basis was the difference in history between that taken by the Medical Assessor and that taken by the experts on both sides of the record.
The history taken by the Medical Assessor, we understood Ms Little to submit, accurately reflected her functioning at the time of the assessment. Accordingly, the rating given was open to him.
There had been a significant passage of time between the dates of the assessments by the experts, and that of the Medical Assessor, Ms Little argued, and it was incorrect to submit that a contradictory history had been given to the Medical Assessor, as a change in her functioning over time was not a proper basis for appeal. Over that time, we understood
Ms Little to say, she went from being married, to separating from her husband and now she was in a new relationship.
Ms Little submitted that the appellant employer’s submission regarding what was said elsewhere in the MAC “makes no sense.”

Discussion

There is some validity to Ms Little’s comment that the appellant employer’s submission made no sense. For some reason, the appellant employer was under the misapprehension that the MAC was jointly written by the Medical Assessor and a “Dr Patrick Morris”.[19] This explains the use of the plural pronoun by the appellant employer when referring to the Medical Assessor.
[19] See appeal papers page 10.
However, it is necessary to look beyond that anomaly in order to properly consider the appellant employer’s appeal.
The relevant class descriptors for this category are as follows:
Table 11.1: Psychiatric impairment rating scale – self care and personal hygiene
Class 1 No deficit, or minor deficit attributable to the normal variation in the general population.
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) two to three times per week to ensure minimum level of hygiene and nutrition.
We had some difficulty in comprehending the reasons given by the Medical Assessor, and we agree with the appellant employer that his reasons were somewhat contradictory. He took a history that Ms Little looks after her children by making their lunches and taking them to school. She showers, although sometimes she forgets, she sometimes did the washing and she encouraged the children to do some chores by washing up around them. It seems that the Medical Assessor was somewhat suspicious of her statement that she did not cook very often because her husband was a chef, as he asked her three times about her current situation and was then told that Ms Little cooked nightly, “but finds it ‘definitely’ more difficult due to depressive symptoms.” The finding that her current partner did the chores ‘sometimes,’ or that the children might ‘at times,’ rather implies that Ms Little did the chores ‘usually,’ as the Medical Assessor recorded.
Accepting Ms Little’s explanation for some of the confusion – that the expert opinions were out of date - nonetheless we are of the view that the comments by the Medical Assessor have not taken into account a significant aspect of the application of the PIRS.
Chapter 11.11 of the Guides set out the basis on which the behavioural consequences of a psychiatric disorder are to be assessed:
Psychiatric impairment rating scale
11.11 Behavioural consequences of psychiatric disorder are assessed on six scales, each of which evaluates an area of functional impairment:
1. Self care and personal hygiene (Table 11.1)
2. Social and recreational activities (Table 11.2)
3. Travel (Table 11.3)
4. Social functioning (relationships) (Table 11.4)
5. Concentration, persistence and pace (Table 11.5)
6. Employability (Table 11.6).
Chapter 11.11 also provides that the first three categories (or scales) are described as “activities of daily living.”
As indicated above, the Tables set out the descriptors by which the impairment in each area is rated. Usually, the evaluation is concerned with whether, and to what degree, a person is able to function, and the descriptors are there to assist the assessing psychiatrist to judge the severity of the behavioural consequence of a person’s psychiatric disorder in each category. There are 30 classes of descriptors across the six categories provided by Chapter 11 of the Guides, and only one of those classes is concerned with the psychological reasons for a person’s behaviour, and that is within the class 3 descriptors for the travel category – that is; where a person cannot travel away from his/her residence without a support person, the “problems may be due to excessive anxiety or cognitive impairment.”
The descriptors are concerned with what a person with a psychiatric disorder is able to do, or conversely the degree to which they are impaired compared to the Class 1 descriptors, allowing for age, cultural and sex norms. They are not concerned with the motive for his/her behaviour, but rather that he/she is able to perform the activity described. Thus Ms Little told the Medical Assessor that she did cook every night. She usually did do the chores, although with occasional assistance from her family and the evidence establishes that she was able to look after herself adequately. These are all activities that are consistent with a class 2 rating.
Moreover, the Medical Assessor did not explain why in the face of these findings -particularly when he had to ask Ms Little three times about her cooking activities – he found that a class 3 rating was appropriate. The evidence was not compatible with a class 3 rating, as it was not suggested that Ms Little could not live independently without regular support, and she did not frequently miss meals. In fact her family was more dependent on her than she on them. Whilst the descriptors are examples only, they do, as expressed in Wark, “provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected.” It was, with respect, nothing to the point that Ms Little said that she found it more difficult due to depressive symptoms. The relevant fact is that she was able to do the cooking nightly.
We note the comments by the Medical Assessor when considering the reports of the respective experts of each party. The Medical Assessor said:[20]
“… I have determined a higher degree of impairment than both Dr Nagesh and
[20] Appeal papers page 51.
Dr Khan… because Ms Little tends to miss showering on three days of the week, changes her clothes every two days and skips brushing her teeth at all three days a week. She attends to the cooking and other chores less. There is overall a moderate impairment in this domain in my view.”
This generality does not reflect the detail of the reasons given by the Medical Assessor, nor the inherent contradictions we have discussed.
Accordingly this rating will be reduced to 2.

Social and recreational activity

The MAC

The Medical Assessor gave a class 3 rating in this category also. He said:[21]
“Friends used to be seen ‘often’, with a few close friends she saw once or twice a week prior to moving - she has friends in Sydney (where she grew up), and on first moving she ‘saw a couple of friends, but now I don't bother’, no longer seeing anyone other than her partner- with friends or other social connections seen two¬ monthly, on further history. Hobbies used to be varied pre-injury: ‘I used to have a cake business, with my ex¬ husband’, 2-3 years ago which she has not worked in since the injury. She also had a resin art business for 5 years, ceasing ‘in the last ... eight months’ due to her mental state ('Just don't have the energy for it, don't have the energy for anything at the moment)’. Ms Little continues to enjoy woodwork and tool work, which she does ‘once or twice a week" now, but pre-injury she did this "all the time, throughout the week’, as her resin art business required this. No family are seen as she has nil around her.”

SUBMISSIONS
Appellant employer
[21] Appeal papers pages 46 and 57.

The appellant employer referred to the fresh evidence that we have rejected.
It submitted that there was no evidence that Ms Little needed a support person to go out, which is one of the descriptors regarding a class 3 rating.

Ms Little

Ms Little relied on the authorities we considered above in submitting that the rating was open to the Medical Assessor.

DISCUSSION

The relevant class descriptors provided in this category are:
“Table 11.2: Psychiatric impairment rating scale – social and recreational activities
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 with these.
Class 2 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).
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.”

It can be seen that Ms Little, prior to her injury, had an active interest in recreational hobbies. These were remarked on by the Medical Assessor and it seems that although they may have continued for a while, she is now occupied only with her woodwork and tool work once or twice a week. Ms Little had a cake business with her ex-husband, which she ceased taking part in after her injury, and she also had a resin art business in which over the last eight months she had ceased participating as she did not have the energy. The panel note that any impairment in the running of these businesses would primarily form conduct rated in employability but acknowledge that making cakes and resin art may also compromise recreational activities. There is little in the way of corroborative evidence to establish any further facts, as the expert evidence is of some vintage.
Dr Abishek Nagesh, psychiatrist, reported on 5 April 2023 thought that Ms Little should be classed at a 3 rating.[22] His assessment then had similarities to her presentation to the Medical Assessor, finding that she had become completely withdrawn, lost contact with her friends, and did not attend social engagements such as dinner parties, weddings or anniversaries.
[22] Appeal papers page 201.
Dr Abdal Khan, psychiatrist, reported on 1 August 2023 that he agreed with Dr Nagesh’s assessment, save for the categories of travel and employability.[23]
[23] Appeal papers page 91.
We repeat the findings in Wark that Campbell J approved in Ferguson – that in this branch of medical science the value of the face-to-face assessment cannot be underestimated. A Medical Assessor is able to make assessments based on his expertise and experience that other rational minds might disagree with. Indeed, such is usually a corollary of his/her function.
A Medical Assessor has the same functions of a Medical Panel,[24] which were described in Wingfoot Australia Pty Ltd v Kocak,[25] where the High Court (French CJ, Crennan, Bell, Gageler and Keane JJ agreeing) held from [47]:
“The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
[24] Western Sydney Local Health District v Chan [2015] NSWSC 1968 at [13].
[25] [2013] HCA 43; (2013) 252 CLR 480.
Accordingly the opinions of other experts, and indeed all the evidence before the Medical Assessor, have a bearing on the medical question before him, but only insofar as they assist him to fulfil his function. Whilst the view of a medical specialist from one side or the other might be that the same WPI rating as the Medical Assessor determines is appropriate, such a view is relevant only to the extent that it coincides with the application of the independent opinion reached by the Medical Assessor after he has exercised his own clinical judgement
However, if a party wishes to argue that a Medical Assessor has erred in his function where its own expert opinion coincides with his conclusion, it must overcome the difficulty expressed by the above authorities, namely, that a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review. If the Medical Assessor agrees with its own expert witness, that party bears an onus to demonstrate not only that the Medical Assessor was in error, but that so also was its own expert.
The appellant employer has been unable to do so. The Medical Assessor was aware of
Ms Little’s recreational activity of doing her tool and woodwork, but in exercising his own clinical judgement was satisfied that a class 3 rating was appropriate to her functioning. The appellant employer has submitted that there was no evidence that Ms Little needed a support person to go out, but such an argument ignores the fact that descriptors are not criteria, and that some aspects of an injured worker’s impairment may match the descriptor of a different class than their overall impairment in that category. Furthermore the descriptor of “will not go out without a support person” is to be read in the context of rating social and recreational activity i.e. the person does not go out to undertake social and recreational activities.
The appellant employer does no more than advance a proposition that is no more than a mere difference of opinion on a subject about which reasonable minds may differ. The class 3 rating is confirmed.

Travel

The Medical Assessor rated Ms Little as class 2 in this category. He said:[26]
“Driving is ‘a relief’ for her- she drives a V8 ute ("hotted up, it's my baby") but is not using her motorbike, which is unregistered. She reported being able to travel within local and familiar areas but not to new places, constrained by anxiety. The examination occurred via Microsoft Teams but she was originally to attend the PIC's consulting rooms and had felt ''frightened, so scared" at the idea, so ultimately opted for a video assessment.”
[26] Appeal papers pages 46 and 57.
The relevant descriptors are set out in Table 11.3 of the Guides:
“Class 1 No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision.
Class 2 Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.”

SUBMISSIONS

The appellant employer submitted that the history taken by Dr Nagesh was relevant. It appeared in the report of 5 April 2023, and a class 1 rating was given by Dr Nagesh, who said:[27]
“I have assessed her as class 1, no deficit. My rationale is the worker travels independently to work which is an hour’s drive every day back and forth is a two-hour drive. She does not require a support person to travel to work.”
[27] Appeal papers page 110.
We were referred to the fresh evidence which we have rejected, and the appellant employer submitted that Ms Little had demonstrated that her willingness to travel to work and accordingly the class 2 rating had been inappropriate.

DISCUSSION

We would observe that Ms Little is no longer able to partake in any employment, and
Dr Nagesh’s rationale has accordingly been overtaken by events. Even Dr Nagesh bases his rating solely on the daily driving of what by definition is a familiar route which matches a mild impairment. The reasons given by the Medical Assessor are consistent with the exercise of his function, which we discussed above.
We confirm the class 2 rating.

Social functioning

This category is the next listed in the Guides, and the descriptors are set out in Table 11.4. The appellant employer evinced an intention to challenge the class 3 rating given, but in the event, made no submissions.[28]
[28] Appeal papers pages 11 and 17.
We confirm the class 3 rating.

Concentration persistence and pace

The Medical Assessor gave a class 3 rating in this category. He said:[29]
“Concentration disruption was fairly clearly present during the assessment and on commenting on the differences between it pre-injury and now, she stated, ‘'Terrible. Terrible, terrible. I have to write things down to remind myself to do things and if I don't write them down, I don't do them. I used to have a business, I can't even function to that now, it's just getting worse’. This reflected the short-term memory deficits evident on assessment. On asking about her concentration after this lapse she commented, ‘It just goes off, I lose interest in it and just don't want to be part of it’. Ms Little said she can watch a show for ‘20 minutes’ but with ‘on and off focus’ in this time, with lapsing focus ‘fairly often, even if I was watching a show that I liked, I'd be looking at my phone or thinking about something else, my mind would be distracted by other things’. She does not read.”

DISCUSSION
[29] Appeal papers pages 46 and 58.

The relevant descriptors are provided by Table 11.5 of the Guides:
Class 1 No deficit, or minor deficit attributable to the normal variation in the general population. Able to pass a TAFE or university course within normal time frame.
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 (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.

The appellant employer submitted that the assessment, even on the Medical Assessor’s findings, was inappropriate. The tool and woodwork which Ms Little performed twice weekly was said to constitute evidence that she was following complex instructions. There was no evidence to support that supposition and we reject that submission as being speculative.
Further, the experts on both sides of the record assessed a class 3 rating, and our comments above apply mutatis mutandis.
Reference was also made to the disallowed fresh evidence, which we put to one side.
This assessment is confirmed.

Employability

The Medical Assessor found a class 5, totally impaired, rating. He took a history that
Ms Little had worked as a graphic designer since she left high school, noting that she said she continued that work when she was with the respondent noting that “if they needed something designed I did it, over 20 years.” The Medical Assessor noted that Ms Little had been with the respondent for 13 years but had worked for 8 to 10 years prior as a graphic designer with various employers. He said:[30]
“Ms Little does not currently present with realistic capacity for employment on the open and competitive labour market from a psychiatric stance, given the severity of her symptoms.”

SUBMISSIONS
Appellant employer
[30] Appeal papers pages 47 and 58.

The finding by the Medical Assessor of a class 5 rating was compared to the opinion of
Dr Nagesh dated 5 April 2023, who assessed a class 3 rating.
The appellant employer noted the history taken by the Medical Assessor that she had not worked as a graphic designer in over a year.
Reference was then made to the contents of the fresh evidence, which we have rejected.

Ms Little

Ms Little submitted that if the additional evidence were rejected, there would be no basis for this ground.

DISCUSSION

The relevant class descriptors are:
“Class 3: Moderate impairment: cannot work at all in same position.
Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful).
Class 4: Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.
Class 5: Totally impaired: Cannot work at all.”
When Dr Nagesh assessed Ms Little, he took a history of her ability to work as a graphic designer, and based his rating on an assumption that Ms Little had established she was capable of working for 15 hours per week.
The history Dr Nagesh obtained was:
“In terms of current routine, Ms Little is working two days per week as a graphic designer…[31]
… With regards to her ability to concentrate, she states that it has declined. She joined Alt Pac working five days a week February but because of her diminished ability to concentrate, she has reduced to 2 days per week.”[32]
[31] Appeal papers page 193.
[32] Appeal papers page 194.
As noted above when discussing the recreational and social activities category, the Medical Assessor took a history that Ms Little’s activities are now reduced to her tool and woodwork hobby that she performed twice a week. Her condition has deteriorated to the extent that she is no longer capable of doing the graphic design work, her ability having deteriorated by 2023 from being able to do five days to just the two days that Dr Nagesh noted. It has clearly deteriorated further.
However, the evidence that Ms Little can perform her wood and tool working hobby twice a week on a regular basis is indicative of some ability to work even if only for a limited number of hours per week, as the products could be sold, or her efforts remunerated or used in a volunteer capacity. Importantly the descriptor for a class 5 rating in this category is an absolute one – the injured worker “cannot work at all”. The Medical Assessor did not explain why this capability did not result in a class 4 rating.
This rating accordingly is reduced to class 4.
Finally, we note that our call for submissions dated 24 June 2025 was not answered by the parties regarding whether the date of injury was intended to be a deemed date. We accordingly leave the pleadings as they were referred to the Medical Assessor.
We note that the Medical Assessor deducted 13% at [10a] of the MAC on a basis that was complex, but in respect of which no challenge was made.

Table 11.8: PIRS Rating Form

Name	Kellie May LITTLE	Claim/Reference number (if known)	W28707/24
DOB	Age at time of injury	37
Date of Injury	2 February 2021	Occupation at time of injury	Corrective Services New South Wales - Senior Correctional Officer/Acting Intelligence Officer
Date of Assessment	16 December 2024	Marital Status before injury	Married

Psychiatric diagnoses	1. Major depressive Disorder		2. Generalised anxiety disorder
Psychiatric treatment	Previous medicine, psychological therapy, psychiatry input.
Is impairment permanent?	Yes
PIRS Category	Class	Reason for Decision
Self Care and Personal Hygiene	2	See reasons herewith
Social and Recreational Activities	3	Friends used to be seen "often", with a few close friends she saw once or twice a week prior to moving - she has friends in Sydney (where she grew up), and on first moving she "saw a couple of friends, but now I don't bother", no longer seeing anyone other than her partner - with friends or other social connections seen two monthly, on further history. Hobbies used to be varied pre-injury: "I used to have a cake business, with my ex husband", 2-3 years ago which she has not worked in since the injury. She also had a resin art business for 5 years, ceasing "in the last ... eight months" due to her mental state ('Just don't have the energy for it, don't have the energy for anything at the moment'). Ms Little continues to enjoy woodwork and tool work, which she does "once or twice a week" now, but pre-injury she did this "all the time, throughout the week", as her resin art business required this. No family are seen as she has nil around her.
Travel	2	Driving is "a relief” for her - she drives a V8 ute ("hotted up, it's my baby') but is not using her motorbike, which is unregistered. She reported being able to travel within local and familiar areas but not to new places, constrained by anxiety. The examination occurred via Microsoft Teams but she was originally to attend the PIC's consulting rooms and had felt "frightened, so scared" at the idea, so ultimately opted for a video assessment.
Social Functioning	3	Ms Little has been in a relationship "about a year", which is currently "very on and off... it's just on and off, we break up, we make up constantly, nearly every day", with strain from her injury and its impacts. "/ just don't see people the same way anymore, I'm not the same, I don't have the same confidence anymore, I go into a hole, I don't talk to people anymore, I just don't function ... I don't have trust anymore in people, which makes it very difficult to have a relationship". She is irritable - "Very, very. Like daily" at her partner and children and frustration tolerance is lower. She was asked how things are with her children: "it's hard, like my son at the moment, I think I need to get him checked for autism. He's acting out really badly, he picked up a knife the other day" - in terms of mental state impacts, she reported, "it does obviously make me quite anxious ... more anxious" - not depressed. The degree of exacerbation was discussed - "it does not contribute a large amount" - her worry is a for him and the children around him, and she said she needs to have him assessed but due to her injury and its impacts on her she has not managed to. "/ should be spending more time doing more things with them, but because of the injury I don't, I don't have the energy, I don't have the motivation, I just don't feel good". The breakdown of her marriage was attributed to 'Just my mental state. I couldn't look at him, did he cause it, he wasn't openly supportive. I already had enough going on with what was happening in intel. And then the whole Kylie thing, if that hadn't happened... I'd probably still be working". She said there was loss of interest, partly caused by him, and she then lost interest in their marriage. Ms Little said he "had a go at Kylie via the work email, and said some stupid things via the work email and then he got sent to another jail, and the way we look after the kids was very difficult. I worked at a 12-hour jail and he worked at an eight-hour jail - after everything I just lost interest in the marriage".
Concentration, Persistence and Pace	3	Concentration disruption was fairly clearly present during the assessment and on commenting on the differences between it pre-injury and now, she stated, "Terrible. Terrible, terrible. I have to write things down to remind myself to do things and if I don't write them down, I don't do them. I used to have a business, I can't even function to that now, it's just getting worse". This reflected the short-term memory deficits evident on assessment. On asking about her concentration after this lapse she commented, "ft just goes off, I lose interest in it and just don't want to be part of it". Ms Little said she can watch a show for "20 minutes" but with "on and off focus" in this time, with lapsing focus "fairly often, even if I was watching a show that I liked, I'd be looking at my phone or thinking about something else, my mind would be distracted by other things". She does not read.
Adaptation		4	See reasons herein

Score Median Class

Aggregate Score Impairment Total %

= 17

19%

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	M1-W28707/24
Applicant:	Corrective Services New South Wales
Respondent:	Kellie May Little

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Ash Takyar and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - whole person impairment (WPI)

Body Part or system

Date of Injury

Chapter, page and paragraph number in NSW workers compensation guidelines

Chapter, page, paragraph, figure and table numbers in AMA 5 Guides

% WPI

Proportion of permanent impairment due to pre-existing injury, abnormality or condition

Sub-total/s % WPI (after any deductions in column 6)

Psychiatric/

Psychological Disorder

2 February 2021

Chapter 11

N/A

2.47%

17 (rounded)

Total % WPI (the Combined Table values of all sub-totals)

17%

[2025] NSWPICMP 645

27 August 2025