Cox v Secretary, Department of Education

[2025] NSWPICMP 812

DETERMINATION OF APPEAL PANEL
CITATION:	Cox v Secretary, Department of Education [2025] NSWPICMP 812
APPELLANT:	Allison Margaret Cox
RESPONDENT:	Secretary, Department of Education
APPEAL PANEL
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	21 October 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); psychological injury; appellant worker alleged assessment on the basis of incorrect criteria and demonstrable error in the making of an assessment under one of the psychiatric impairment rating scale (PIRS) categories (namely travel, social and recreational activities); Held – Appeal Panel could discern no error; MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 10 July 2025 the worker Allison Margaret Cox (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
   Dr Patrick Morris, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 11 June 2025.

2. The appellant relies on the following ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):

   ·        The availability of additional evidence

   ·        the assessment was made on the basis of incorrect criteria, and

   ·        the MAC contains a demonstrable error.

3. 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 grounds of appeal on which the appeal is made.

4. 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.

5. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
   1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

PRELIMINARY REVIEW

1. 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.

2. In the formal part of the Appeal Application requested, by ticking the “yes” box to the relevant question, that she undergo a re-examination by a Medical Assessor who is also a member of the Appeal Panel. However, in the appellant’s submissions she specifically stated that she did not consider a re-examination was necessary. As a result of its preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the Appeal Panel did not find error in the assessment of the class of impairment. Absent a finding of error, the Appeal Panel has no power to require the worker to undergo a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.

EVIDENCE

Fresh evidence

1. 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.

2. The appellant seeks to admit two additional documents as follows:

   (a)    a report by psychologist Joel Volker dated 3 July 2025 (that is after the MAC and commenting on aspects of the impairment assessment), and

   (b)    a letter from the Rotary Club of Camden dated 7 July 2025 correcting the record as to the number of the appellant’s attendances at Rotary.

3. The respondent employer the Secretary, Department of Education (the respondent) opposes the admission of the additional evidence.

4. The Appeal Panel determines that the evidence from Joel Volker should not be received on the appeal because it concerns the ratings given by the Medical Assessor in the contested PIRS category and seeks to give evidence relevant those categories. The appellant has had the opportunity to provide treating as well as IME reports and an opportunity to provide a history to the Medical Assessor as well as histories to the various doctors including IMEs whose reports are in evidence. There is no basis for the admission of additional evidence from the appellant in the form of a further medical report at this point in the proceedings.

5. The Appeal Panel determines that the evidence from the Rotary Club should be admitted as it corrects the record of the number of attendances of the appellant at the Club.

Documentary evidence

1. The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment as well as the letter from the Rotary Club dated 7 July 2025 and has taken them into account in making this determination.

Medical Assessment Certificate

1. 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

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

FINDINGS AND REASONS

1. 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.

2. 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.

3. The matter was referred to the Medical Assessor for assessment as follows:

   “The following matters have been referred for assessment (s 319 of the 1998 Act):

   §  the degree of permanent impairment of the worker as a result of an injury (s319(c))

   §  whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d))

   §  whether impairment is permanent (s319(f))

   §  whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))

   Date of injury:   15 June 2023  

   Body part/s referred:                Psychiatric/Psychological Disorders

   Method of assessment:           Whole Person Impairment”   

4. The Medical Assessor issued a MAC certifying 9% whole person impairment (WPI) as a result of the injury as follows:

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 AMA5 Guides	% WPI	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)		Sub-total/s % WPI (after any deductions in column 6)
Psychiatric/ Psychological Disorder	15 June 2023	Chapter 11	N/A	9%	Nil		9%
Total % WPI (the Combined Table values of all sub-totals)						9%

1. The assessment was based on his assessment under PIRS as required by the Guidelines as follows:

“Table 11.8: PIRS Rating Form

Name	Allison Cox	Claim reference number	W4401/25
Date of Birth	xxxx	Age at time of injury	55 years
Date of Injury	15 June 2023	Occupation at time of injury	Student Learning Support Officer
Date of Assessment	4 June 2025	Marital Status before injury	Married

Psychiatric diagnosis	Major Depressive Disorder with anxious distress
Psychiatric treatment	Psychological counselling on a 2-3 weekly basis.
Is impairment permanent?	Yes

PIRS Category		Class		Reason for Decision
Self-care and personal hygiene		2		Mild impairment. Ms Cox does some shopping herself but her husband does most of it. She and her husband share the cooking and other household chores. She skips meals at times. She changes her clothes on a daily basis and showers most days. She is less interested in her personal grooming and appearance than previously and gave an example of not wearing makeup anymore. In my opinion, she is able to live independently.
Social and recreational activities		2		Mild impairment. Ms Cox is able to drive by herself to attend Rotary Club meetings in Camden most weeks. She said that she interacts with other members of the Rotary Club and gets involved in activities when she is there. She occasionally goes with her husband to watch a young friend play rugby league. She has lost interest in going shopping with friends, going to the theatre or having dinner with friends.
Travel		2		Mild impairment. Ms Cox is able to drive short distances by herself such as to the local shops and to see her GP and also the 30 minute drive to Camden for weekly Rotary Club meetings. For longer distances or to new destinations, she relies on her husband to drive because of her anxiety.
Social functioning		2		Mild impairment. Ms Cox reports a good relationship with her husband. She reports a good relationship with three of her adult children but some strain in her relationship with her daughter who lives in a granny flat on her property. She said she has lost many friendships due to her social withdrawal.
Concentration, persistence and pace		3		Moderate impairment. Ms Cox reports being only able to read about newspaper length articles on the computer before losing concentration and needing to re-read the passages. She is not able to read books anymore as a result of her reduced concentration. She is now only able to knit for short periods of time.
Employability		5		Totally impaired. In my opinion, Ms Cox’s psychological symptoms from her condition of Major Depressive Disorder with anxious distress including her pervasively depressed mood, reduced motivation, poor concentration and high levels of anxiety would prevent her from working at all. I note that she has not worked at all since June 2023.
Score		Median Class

2 2 2 2 3 5 2

Aggregate Score Impairment Total

+2 +2 +2 +2 +3 +5 = 16

Impairment (%WPI) from Table 11.8	9%
Adjustment for Treatment Effect (if any)	Nil
Less Pre-Existing Impairment (if any)	Nil
Final Impairment (% WPI)	9%

1. The worker appealed.

2. In summary, the appellant submitted that the Medical Assessor made assessments on the basis of incorrect criteria and demonstrable errors in the assessments he made under one of the six PIRS categories, namely social and recreational activities, causing him to make an error in the assessment in this domain as follows:

   (a)    in assessing Class 2 for social and recreational activities when he should have assessed Class 3.

3. In summary, the respondent submitted that the Medical Assessor neither erred nor made an assessment on the basis of incorrect criteria and the MAC should be confirmed.

4. The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an independent assessment of impairment under the PIRS categories. The assessment is not to be based upon self-report alone. An appeal panel cannot disturb ratings under the PIRS for mere difference of opinion but must be satisfied as to error.

5. The path of reasoning disclosed by the Medical Assessor must be adequate. This is also dependent on the extent of the history taken and a thorough examination of the worker so that self-report can be properly evaluated in the context of other evidence before the Medical Assessor. The MAC must be read as whole.

6. The appellant complained about one of the assessments, namely in the category of social and recreational activities where it was submitted that a Class 3 or moderate impairment should have been assessed instead of the Class 2 or mild impairment rated by the Medical Assessor.

7. In respect of Social and Recreational Activities, Table 11.2 of the Guides provides as follows:

   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.
Class 4	Severe impairment: never leaves place of residence. Tolerates the company of family member or close friend, but will go to a different room or garden when others come to visit family or flat mate.
Class 5	Totally impaired: Cannot tolerate living with anybody, extremely uncomfortable when visited by close family member.

1. The Medical Assessor assessed a mild impairment at Class 2 with the following reasoning:

   “Ms Cox is able to drive by herself to attend Rotary Club meetings in Camden most weeks. She said that she interacts with other members of the Rotary Club and gets involved in activities when she is there. She occasionally goes with her husband to watch a young friend play rugby league. She has lost interest in going shopping with friends, going to the theatre or having dinner with friends.”

2. The IME qualified on behalf on behalf of the appellant, Associate Professor Robertson assessed Class 3 and Dr Davies the IME qualified on behalf of the respondent assessed Class 2. The Medical Assessor was required to make an independent assessment using his clinical judgment on the day of assessment. He explained why his opinion differed from Associate Professor Roberston as follows:

   “A/Prof Robertson gave Ms Cox a whole person impairment rating of 15%. Where he differed from me were in his rating for Social and recreational activities where he rated Ms Cox a Class 3. I have rated Ms Cox a Class 2 as she said that most weeks she attends a Rotary meeting in Camden by herself which is a 30-minute drive from her home. She drives herself to this meeting and said that she interacts with other members when at the meeting. I therefore believe this best fits a Class 2 rating for Social and recreational activities.”

3. The appellant submitted that the Medical Assessor failed to have regard to the appellant’s limitation with regards to holidaying with her family and attending the gym.

4. The appellant has a holiday home which prior to her injury she would go with her family approximately once per month. Since her injury in June 2023 she has only attended six times. The appellant submitted that this restriction on previous enjoyed activities was not taken into account by the Medical Assessor who also failed to take into account that she used to attend the gym times a week but has not attended since her injury.

5. The appellant submitted that the Medical Assessor incorrectly referred to a travel criterion in this category. The appeal panel does not consider that this is what the medical assessor has done. Reading the MAC as a whole it is clear that the medical assessor has taken into consideration that the appellant is able to go by self to rotary without a support person needing to go with her.

6. The appellant also submitted that the Medical Assessor incorrectly took into account that the appellant attends rotary “most” weeks. The letter from Rotary dated 7 July 2025 which the Appeal Panel has admitted shows the correct attendance was 18 times in a year. The Appeal Panel considers that this does not amount to a rare attendance (which is what a moderate impairment requires) but reflects an occasional attendance (which is the criteria for a mild impairment). The appellant is actively involved when she is there and interacts with other members. Although she has lost interest in other activities such as going out to dinner with friends, the theatre and shopping, she will go with her husband to watch a young friend play rugby league.

7. The Medical Assessor was required to make an independent clinical assessment in this domain. The Appeal Panel can discern no error in the rating of a mild impairment. The appellant is attending occasional social activity without the need for a support person. Her social activities (attending Rotary, attending the rugby games, attending the holiday home) are not rarely undertaken but are occasionally undertaken. Class 2 is the best fit and the Medical Assessor has assessed in accordance with the correct criteria and the Appeal Panel can discern no error.

8. For these reasons, the Appeal Panel has determined that the MAC issued on 11 June 2025  should be confirmed.