Davey v Western Sydney University
[2025] NSWPICMP 605
•13 August 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Davey v Western Sydney University [2025] NSWPICMP 605 |
| APPELLANT: | Frank Davey |
| RESPONDENT: | Western Sydney University |
| APPEAL PANEL | |
| MEMBER: | Parnel McAdam |
| MEDICAL ASSESSOR: | Professor Nicholas Glozier |
| MEDICAL ASSESSOR: | Ash Takyar |
| DATE OF DECISION: | 13 August 2025 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); medical appeal; challenge to the assessment under the psychiatric impairment rating scales (PIRS); appellant sought to introduce fresh evidence; application rejected; re-examination by member of Appeal Panel; error in assessment of social and recreational activities; Held – MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 5 March 2025, Mr Frank Davey, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Gerard Walsh, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 10 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), 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).
RELEVANT FACTUAL BACKGROUND
Mr Davey has had a work history with the respondent prior to the current injury. He worked there for around 12 years, before being made redundant in 2017. In March 2023, he returned to employment with the respondent, but very quickly became overwhelmed with the work. He was subject to a probation review after three weeks on the job. He ceased work in May 2023.
He made a claim for lump sum compensation. The claim was disputed on the basis that he had not reached maximum medical improvement. Proceedings were commenced in the Commission, and the matter was referred to the Medical Assessor for assessment. The MAC was issued on 10 February 2025. Mr Davey appeals against that assessment.
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 the Appeal Panel were satisfied that the MAC contained a demonstrable error.
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) report of Elizabeth Richter dated 12 February 2025, and
(b) a document titled “Frank Davey Response to MAC report”, that is undated and unsigned.
The appellant seeks to rely on the additional material for the “limited purpose”, that there are errors that appear to arise out of confusion or difficulties in the accuracy of the history taking process of the Medical Assessor.
The respondent’s submissions do not explicitly oppose the admission of the material. The respondent submits that the additional evidence is “insufficient to constitute a demonstrable error” and that in his response, he is attempting to “rewrite the history”.
Material can be admitted before an Appeal Panel pursuant to s 328(3) of the 1998 Act, which 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 has not addressed the requirements of s 328(3) at all. The appellant submits that the material should be admitted for a “limited purpose” but has not explained why it was not available and could not reasonably have been obtained before the medical assessment.
In respect of the report of Elizabeth Richter, the Appeal Panel are not satisfied that this evidence fits within the definition of material that can be admitted. Ms Richter provides a series of reports/letters which are attached to the Application to Resolve a Dispute (Application) that discuss his treatment. The material contained in the letter is largely of the same nature. Further, there is no explanation from the appellant as to why the report of Ms Richter could not have been obtained prior to the medical assessment. The appellant had the opportunity to obtain a report from Ms Richter prior to the medical assessment. Ms Richter’s report of 12 February 2025 describes the appellant presenting with self-harm and suicidal ideation, but also reports that the appellant has presented with those thoughts “almost weekly”. The material is not fresh or in addition to material received, and could have been reasonably obtained prior to the assessment.
The other document is an unsigned, undated document purportedly prepared by Mr Davey. On that basis it has no probative value. The content of the document largely provides a different interpretation of the history recorded in the MAC, which is not fresh evidence or evidence in addition to evidence received. It is a difference of opinion particularised in a documentary form. The appellant’s solicitor has no attempted to explain why it could not have been obtained prior to the MAC to set out Mr Davey’s current functioning (which, in any event, is described in the statement of 15 May 2024).
For the above reasons, the Appeal Panel determines that the evidence should not be received on the appeal.
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 Nicholas Glozier of the Appeal Panel conducted an examination of the worker on 16 July 2025 and reported to the Appeal Panel. The contents of the re-examination report are inserted below and will be discussed as part of findings and reasons.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor erred in his assessment of the appellant in four of the six psychiatric impairment rating scales (PIRS), on each occasion suggested that the worker should have been assessed higher. The appellant’s submissions are general and highly what are said to be incorrect histories or findings inconsistent with the history recorded.
In reply, the respondent notes that the only difference in the PIRS class ratings between the applicant’s medical expert, Dr Teoh, and the Medical Assessor are in the scales of social and recreational activities and social functioning. The other PIRS assessed by the Medical Assessor are consistent with the assessment of Dr Teoh and the respondent is “at a loss” as to the appeal in those scales.
The respondent then makes specific submissions in respect of each of the PIRS. In respect of the categories where there is a difference between the Medical Assessor and Dr Teoh, the respondent generally submits that the Medical Assessor sets out detail grounds to justify his assessment, and the history taken is more extensive than that recorded by Dr Teoh.
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. The appeal concerns the application of the PIRS, and accordingly the Appeal Panel’s consideration of the matter is limited to that issue (per Basten JA in Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 at [26]):
“Secondly, s 328(2) requires that the review ‘is limited to the grounds of appeal on which the appeal is made.’ Because the gateway function of the Registrar is satisfied if ‘at least one of the grounds’ has been made out, it appears that the Appeal Panel is not limited to the ground held by the Registrar to have been made out, but may consider all grounds of appeal raised in the appellant’s application. On the other hand, it is clear that the Appeal Panel is not permitted to look for errors which are not part of 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 medical assessment in the present dispute is of a psychiatric injury. Accordingly, under the Guidelines, impairment is to be assessed under the PIRS. Assessments of impairment are undertaken “in accordance with” the Guidelines, per s 322(1) of the 1998 Act.
The PIRS provide for six scales, “each of which evaluates an area of functional impairment” (cl 11.11 of the Guidelines). The appellant has challenged the Medical Assessor’s assessment in four of the PIRS. The scales give examples of activities that are to be taken into account when assessing the class of functional impairment. The class descriptors range from no or minor deficit, through to totally impaired. This is explained by Campbell J in Ferguson v State of New South Wales [2017] NSWSC 887:
“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 by his injury, and the classes between are in an ascending order of impairment.”
Each area of functional impairment provides a series of examples, that are “examples only” (cl 11.12). In Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633, Garling J considered the construction of the PIRS in the context of the examples given. He provided some commentary on the construction of the Guidelines:
“The submission of the plaintiff that, in assigning a class of impairment to each scale, the AMS is restricted only to the examples of activities listed in the tables or, alternatively, to those activities as a minimum, cannot be accepted.” (at [57])
The criteria in the Guidelines are not prescriptive. They must be read as a guide capable of being surmounted by other relevant facts (Rogers v Health Services Union NSW [2025] NSWSC 291 at [45]).
The demonstrable error identified
As set out above, the appellant has challenged the Medical Assessor’s assessment in four of the PIRS. The Appeal Panel undertook a preliminary review in the absence of the parties. As a result of the preliminary review, the Appeal Panel determined that the MAC contained a demonstrable error. This was with reference to the Medical Assessor’s assessment of the PIRS of social and recreational activities. That scale will be discussed first.
The Medical Assessor assessed class 2 in this PIRS, providing the following reasons in the PIRS table:
“Class 2 and not Class 1 was selected because he occasionally goes out to social events and has difficulty becoming actively involved. His previous activities are reduced. He can do some activities without a support person.
They had mild impairment
Hobbies: He said he was previously passionate about music and writing but cannot do them now. He said that whatever he writes nowadays he throws it away because it is ‘rubbish’. He said he used to record his music daily but does not do that now.
Exercise: He stated that he goes for a walk most days for around 10 minutes. He has difficulty with motivation.
Frequency of socialising: He said he goes for coffee with his wife twice a week at her request. He goes out once a fortnight with family or friends.
Involvement when out: He reported that he is anxious when he is out. He finds it difficult to communicate and he cannot talk freely as before. He can go out with a friend to a band but lacks energy for days after.
He goes out without his wife sometimes with friends, but very rarely now.
When he is in Hornsby, having dropped off his wife at work, he spends the day sitting in the car or goes to a library or gallery if feeling up to it until she finishes at the university.
He stated that before the subject injury, he used to enjoy music and writing. He did not exercise previously.”
There are two aspects to the appellant’s appeal in this PIRS. The first is in respect of the assessment based on the history taken. The appellant submits that he was highly active pre-injury and many of his activities have ceased. The second is in respect of the history taken. The appellant submits that the history recorded is incorrect, that he does not take her to TAFE and that he attends because he cannot be left alone.
The respondent submits that the Medical Assessor provides detailed reasons and records that previous activities were reduced. The history recorded by the Medical Assessor is more comprehensive than that of Dr Teoh, and the MAC does not contain a demonstrable error.
The re-examination
The Appeal Panel, having considered the submissions of the parties, are satisfied that this ground of appeal is made out. The Medical Assessor has taken a history of activities Mr Davey engages in that is inconsistent with that recorded elsewhere, and it is not clear from the Medical Assessor’s reasons the specific activities considered. The history recorded, and the reasons provided appear inconsistent at face value with a finding of class 2, but there is insufficient, and conflicting, evidence that precludes an assessment by the Panel on the documentation. For instance the worker is recorded as “very rarely” going out without his wife, who the Appeal Panel accepts may (but again, not specified) be required as a support person, yet also “going to a band with a friend”, and further “going out fortnightly with family or friends” (emphasis added). For those reasons, the Appeal Panel determined that it was necessary that a Medical Assessor member of the Appeal Panel conduct a re-examination of the worker. That re-examination was conducted by Nicholas Glozier and took place on 16 July 2025. The report of that examination is as follows:
“PERSONAL INJURY COMMISSION
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
| Matter Number: | M1-W30012/24 |
| Appellant: | Frank Davey |
| Respondent: | Western Sydney University |
| Date of Determination: | 16 July 2025 |
| Examination Conducted By: | Nicholas Glozier |
| Date of Examination: | 16 July 2025 |
1. The worker’s medical history, where it differs from previous records
Mr Davey reports he continues to see his GP on a three-monthly basis although suggested the insurer would like him to see her more frequently. He remains on Escitalopram 30mg daily. This is the only antidepressant he has been on throughout the over two years of his injury. It has not been changed or augmented or had any of the standard guideline medication approaches to treating depressive or anxiety disorders. This is sadly all too common in mental health disorders compared to physical disorders. He could not explain why it has not been changed but said he did not want to change it despite not having noticed any significant improvement. He related this to the emergence of anxiety if he misses a dose, which appears to describe a withdrawal phenomena rather than a relapse given the time frame. He also takes a Valium every three weeks or so after ‘an incident of self-harm.’
He has been seeing Ms Richter for two years. He describes a range of supportive encouraging activities and strategies which he says he is able to engage with only minimally. For instance he says she tries to get him to be creative, go outside, play guitar, write, but he feels that these are all quite overly difficult at times. He said he occasionally feels better - i.e. he means ‘it is all not all impossible’ - but the most he gets to this is every three or four days. He struggled to pinpoint when this would be, noting that he ‘can only really see what the today is like.’
He reported not seeing any other specialists, or the use of any other medications or supplements.
He acknowledged that none of this treatment has led to any significant improvement in either symptoms or function, struggling to identify any substantial benefit beyond the support itself.
In terms of his wellbeing, he goes for a walk several days per week. He has two routes; one where he will go up to the local shops, pick up some food basics, and the other around a few blocks locally but does not go on any of the local bushwalks. He says he tries to be creative e.g. has loaded up a music program on the new computer that Tess has bought but has not used it. He will read poems, try writing or playing music but does not persist at any of these because he feels he cannot focus, concentrate or have the energy to persist for a long time. He still eats somewhat of a healthy diet, noting bananas, fruit juice, nuts etc and otherwise he has a limited repertoire of cooking e.g. green curries, and Tess does more. He finds it very difficult to do any mindfulness or meditation although has tried.
Throughout the assessment he displayed significant negative cognitions about himself, his confidence, his abilities and his second-guessing, which could then prompt more overt reactions.
He describes at times ‘meltdowns’ with Tess. He says these are not always observable on the outside but he can feel quite catastrophic and anxious on the inside, even over minor things. For instance he said that when he was in Bendigo at an exhibition with Tess recently, he had been asked to take a photograph but did not frame it correctly and berated himself for this. When he was out on the street he said someone shouted out at him and again this led to fears, arousal and him becoming almost panicked.
At these times, every couple of weeks or so, he will engage in a form of self-harm where he punches and slaps himself. Occasionally this might leave a bruise. He has scratched his wrists and recently ‘stabbed myself with a spoon’(he understood how absurd this seemed given a spoon has no point). Three have been no more serious forms of self-harm e.g. cutting, burning or any overdoses. He has not required any medical treatment for any of these. He says they generally occur because he cannot handle external criticism or even his own internal criticism which appears quite marked. He feels like they ‘come out of nowhere’ and would be associated with some panic-like phenomena, suggesting that this may even reflect a version of a panic attack that he has.
2. Additional history since the original Medical Assessment Certificate was performed
Mr Davey continues to live with Tess. She is on holiday at the moment but is taking a degree in ceramics at Kingswood TAFE where she would normally go a couple of times a week. He says the days are all fairly similar although within each of them there might be slightly different ‘ups or downs.’ He goes to bed between midnight and 1am. They will have spent the evening watching TV or YouTube. Tess also does some creative activities in the evening, e.g. sketching or her pottery. He generally gets to sleep within about 20 minutes although suggested that occasionally it might be longer than this. He then generally sleeps through, waking around 7am when the cat wakes him or around 7:30am or 8am when the alarm goes off. He noted that occasionally he will wake up for some reason he cannot pinpoint but otherwise described a normal sleep duration with no onset or middle insomnia. He will then ‘zonk out’ or doze, getting out of bed around 9:30am or 10am. He will make him and Tess a lemon tea or a coffee and they may sit in bed talking for an hour or two. In the morning he will ‘tidy the house a bit’. He says he lacks the energy to do this at times and he is not very good, so restricts himself to kitchen duties or vacuuming. He does not feel he has had a lot of energy for the garden. He does not need to get dressed in a ‘nice shirt’ like he used to or necessarily shower every day as he does not have to, nor does much that makes him need one. His beard is slightly more unkempt than it would have been previously. Over the day he said ‘otherwise it is TV, YouTube, the cat, maybe bringing some wood in’. He finds it hard to organise himself.
He describes attempting to do some creative activities, really not being able to engage or follow through on them due to lack of energy. He used to really enjoy these. He used to find some aspects of e.g. computing enjoyable but because of the association with work, now has withdrawn more from these. He noted that he sees nobody else really apart from Tess except on the rare occasions when they are out. For instance she had an exhibition in Blackheath and he went along to support her. This was not prompted by her, because he wants to support her, but when he was there he ‘clung to a friend’ because he felt wary and anxious. This friend is now travelling so he sees no-one, although Tess goes out. He noted that his son and the children from Tess’ previous relationship have ‘blanked them.’ He might see his son on the street who suggests that he will reach out but ‘nothing ever happens’. He cannot explain why they have been ‘blanked’ but noted that Tess cannot even see her own grandchildren even though the girls live locally.
He will walk and go to the shops locally and can do these things on his own. He drives less frequently now although he and Tess did share the driving down to Bendigo. He described being hypervigilant, over-aroused, fearful (e.g. of tailgaters) and can get quite frustrated and irritated. He last flew for his grandfather’s funeral a couple of years ago and the same time ago for any public transport.
He described attempting a range cognitively demanding activities such as guitar rehearsal, poem writing, but really struggles to persist longer than a quarter of an hour with these and certainly not at the level he did previously or for hours or more. He feels frustrated by this which he relates to poor cognitive capacity.
3. Findings on clinical examination
Mr Davey was casually-dressed with a slightly unkempt beard. He had some specific questions at the beginning of the assessment. He was also quite anxious/apprehensive and in part related this to how tearful he became during the previous assessment. He came across as warm and friendly. Throughout the assessment he was second-guessing himself, apologising and frequently undermining himself or suggesting that his own thought capacity undermined himself. At times his speech was quite colourful and the language used evocative of more severe symptoms than he actually described. (This does not mean to undermine his experience of his symptoms, but to put them in the context of the full range of patients I see.) He describes a fairly dysphoric, low mood much of the time, occasional tearfulness, not complete anhedonia but certainly some reduced interest, primarily due to reduced energy. He has a normal sleep duration, with no onset or middle insomnia of clinical significance, but with a slightly delayed phase. He described poor motivation, energy, focus and persistence. He displayed a range of negative cognitions, very much focused on himself, his capacity and his comparison of how he is now to previously. He described low stress tolerance, being anxious and aroused. He reports significant cognitive difficulties and a negative view of himself and his future. He says he hates being like this and described few ways that the treatment has enabled him to improve.
4. Results of any additional investigations since the original Medical Assessment Certificate
Nil.”
The Appeal Panel note that the appellant has not challenged the assessments under concentration, persistence and pace, and employability. On re-examination, those PIRS have not been altered and it is the Appeal Panel’s view that they are correct.
Self care and personal hygiene
The Medical Assessor assessed class 2 in this PIRS. The appellant submits that the Medical Assessor erred in finding mild impairment.
After considering the history recorded in the MAC and the re-examination report prepared, the Appeal Panel are not satisfied that there has been an error in this PIRS. Mr Davey describes being able to cook, managing his self-care when required, an ability to do some household chores and shop locally. This capacity is all inconsistent with class 3 impairment, which provides:
“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.”
Mr Davey does not satisfy the criteria here, as there is no evidence that he can’t live independently without regular support. Whilst he finds support from his wife, he has the capacity to prepare his own meals and shop for himself. His levels of hygiene and nutrition are adequate. His functioning fits clearly within class 2, as assessed by the Medical Assessor. He occasionally looks unkempt, misses meals, or relies on takeaway foods. He is able to look after himself adequately, although struggles in some areas.
There is no error in the Medical Assessor’s assessment.
Social and recreational activities
As discussed above, the Appeal Panel were satisfied that the MAC contained a demonstrable error in this PIRS. Following the re-examination, the Appeal Panel are satisfied that an assessment of class 2 is incorrect, and the correct assessment of Mr Davey is class 3.
Mr Davey only goes to social events rarely (such as a gallery opening he attended with his wife), but does not become actively involved. His only other real outings are when he is pushed by his wife to go for a coffee. Beyond occasional shopping or a local walk he does not go out without a support person. Importantly, when considering Mr Davey’s functioning on a comparative basis (that is pre and post-injury), he is unable to engage with any of his previously extensive creative activities (which are social and recreational activities), or when he does engage, persist with them for any length of time. The history given to Medical Assessor Glozier is that he hasn’t picked up his guitar for weeks, hasn’t been writing music, and only occasionally reads poems.
The criteria for class 3 impairment provides:
“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 Appeal Panel are satisfied that Mr Davey fits within this class and this is the correct assessment. He rarely goes out to social events and only in the company of his wife. He will not go out (other than minor activities, that do not have a “social and recreational” flavour) without his wife as a support person. When he does attend events with her, he is withdrawn.
Accordingly, the Appeal Panel are satisfied the Medical Assessor has erred and an assessment of class 3 is appropriate. The MAC will be revoked on this basis.
Travel
The Medical Assessor makes a finding of class 2 for this PIRS, providing the following reasons:
“Class 2 and not Class 1 was selected because he can travel without a support person in his local area but requires a support person for longer distances.
They had mild impairment
The Claimant said a support person is not always required to travel.
He said he is hypervigilant when driving and tends not go driving alone. He said he drives short distances alone to the supermarket twice a week. He said he gets “triggered” by other drivers when driving.
However, he then said that once a week he drives for around 1½ hours to take his wife to her university. He stated that before the injury, he could travel anywhere without any problem.”
The appellant submits that the Medical Assessor took an incorrect history in respect of travel, in that Ms Davey’s wife does not attend university, but TAFE at Hornsby.
The history recorded by the Medical Assessor, and given on re-examination, is of capacity to travel locally, although with some anxiety. He was also able to drive interstate with his wife. The descriptor for class 2 in this PIRS provides:
“Mild impairment: Can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.”
The appellant fits cleanly within this class. To qualify for class 3 impairment, Mr Davey must be restricted from travelling from his own residence with a support person. There is no evidence of such a restriction, and such a history was not recorded either before the Medical Assessor or on re-examination. Accordingly, the Appeal Panel are not satisfied this ground of appeal is made out.
Social functioning
The appellant also challenges this PIRS although in a half-hearted way. The appellant submits that it is “demonstrably incorrect” to find mild impairment, and that all social functioning has cease with the exception of a strained relationship with his wife.
The Medical Assessor records the following:
“Class 2 and not Class 1 was selected because he has maintained his relationship with his family members although sometimes strained. There has been some loss of friendships.
They had mild impairment
Relationship with his wife: He said they have been together 25 years. He said the relationship is supportive, but it has been a strain on her. He said there has not been domestic violence or periods of separation.
Relationship with his 4 children: He stated that they have a son together who is 24 years of age. His wife has three adult children in their 30s.
Relationship with siblings: The Claimant said he has three half-brothers in Tasmania, another half-brother in Adelaide, and a half-sister in Melbourne. He said he lost touch with all of them before the work-related issues. He said his half-brothers have tried to get in touch, but he does not want to be a burden to them.
Relationship with parents: He said he used to speak to his mother once a week but that changed around nearly two years. He now speaks to her once every two months because he does not want to see ‘a broken son. She doesn’t need to see me in this state’. He reported that his father has not been in contact for many years, predating the workplace injury.
Relationship with friends: He stated that he still has friends but has been losing friends by not keeping contact.
The Claimant stated that before the subject injury, he was able to go out socially with family and friends three times a week.”
The criteria in this PIRS looks at the quality of the relationships a person has maintained following the injury. Mr Davey gave a history to the Medical Assessor of reduced relationships, but no periods of separation. He has withdrawn from others and some have withdrawn from him or are “blanking” him. This is consistent with some of the family relationships Mr Davey’s wife has, which suggests this is not due to his injury but to other factors relating to the family. His other relationships are again, maintained but to a lesser extent.
To qualify for class 3 impairment, the criteria under the PIRS requires:
“Moderate impairment: Previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”
There is no evidence of separation or domestic violence. Whilst Mr Davey’s children are grown, he maintains a relationship with them, albeit strained. None of the requisite criteria for class 3 are demonstrated, whilst the evidence shows a clear basis for a class 2 assessment. There is no error demonstrated.
Adjustment for the effects of treatment
The Medical Assessor added 2% for the effects of treatment. As the Appeal Panel have undertaken a re-examination of the worker, including all of the PIRS, it is appropriate that we consider this aspect of the assessment.
Consistent with the history given on re-examination, Mr Davey explicitly acknowledges the little treatment undertaken and that none of it has led to significant improvement. He struggled to identify any benefit from treatment. He has not been availed of any more assertive biological treatment than one first-line antidepressant, and has been in therapy for over two years.
Clauses 1.31-1.33 of the Guidelines set out the criteria for the additional allowance for the effects of treatment. That allowance, of 1%, 2% or 3% can be added “where the effective long-term treatment of an illness or injury results in apparent substantial or total elimination of the claimant’s permanent impairment”.
It is the Appeal Panel’s view that the appellant would fail at the first step of this criteria. He has not had effective long-term treatment of his injury. He has had minimal pharmacological treatment, and despite being in therapy for two years, by his own admission, the treatment provided had little effect on his impairment.
Accordingly, the Appeal Panel revokes this inclusion, as none of the criteria are satisfied. The MAC contains a demonstrable error by its inclusion.
For these reasons, the Appeal Panel has determined that the MAC issued on 10 February 2025 should be revoked, and a new MAC should be issued.
The PIRS are assessed in the following way:
(a) Self-care and personal hygiene 2
(b) Social and recreational activities 3
(c) Travel 2
(d) Social functioning 2
(e) Concentration, persistence and pace 3
(f) Employability 5
This is a total of 17, with a median class of 3, equalling 19% WPI. The Medical Assessor made a deduction of 1/10th which has not been challenged and the Appeal Panel agrees is appropriate.
The new certificate, reflecting the findings above, is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W30012/24 |
Applicant: | Frank Davey |
Respondent: | Western Sydney University |
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 Gerard Walsh 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 | 2/3/23 | Chapter 11, Page 54 | N/a | 19% | 1/10 | 19% |
| Total % WPI (the Combined Table values of all sub-totals) | 17% | |||||
0
5
0