Deason v State of New South Wales (NSW Police Force)

[2025] NSWPICMP 231

DETERMINATION OF APPEAL PANEL
CITATION:	Deason v State of New South Wales (NSW Police Force) [2025] NSWPICMP 231
APPELLANT:	Jill Deason
RESPONDENT:	State of New South Wales (NSW Police Force)
APPEAL PANEL
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Ash Takyar
DATE OF DECISION:	3 April 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); psychological injury; whether incorrect criteria and demonstrable error in  assessments under two of the psychiatric impairment rating scale (PIRS) categories; Held – Appeal Panel found error and a re-examination was necessary; MAC revoked; new certificate issued.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 14 November 2024 Jill Deason (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Surabhi Verma, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
   17 October 2024.

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 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. The appellant requested that she undergo a re-examination by a Medical Assessor who is also a member of the Appeal Panel. As a result of its preliminary review, the Appeal Panel determined that it was necessary for the worker to undergo a further medical examination because the Appeal Panel found error.

EVIDENCE

Documentary evidence

1. 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

1. Medical Assessor Michael Hong of the Appeal Panel conducted an examination of the worker and reported to the Appeal Panel.

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):

   MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM Act)

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

   o  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))

   o  whether impairment is permanent (s319(f))

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

   Date of Injury:               1 March 2022 (deemed)

   Body part/s referred:     Psychological/ Psychiatric disorder

   Method of assessment: Whole Person Impairment”

4. The Medical Assessor issued a MAC certifying 7% 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	Sub-total/s % WPI (after any deductions in column 6)
1. Psychological Injury	Chapter 11 Guidelines 11.1-11.3 11.4-11.6	Guidelines 11.11,11.12 Table :11.1,11.2,11.3,11. 5,11.5,11.6	7%	0%	7%
Total % WPI (the Combined Table values of all sub-totals)					7%

1. The assessment was based on his assessment under psychiatric impairment rating scale (PIRS) as required by the Guidelines as follows:

“Table 11.8: PIRS Rating Form

Name	Jill Deason	Claim reference number (if known)	W7433/23
DOB	xxxx	Age at time of injury	48 years
Date of Injury	01/03/2022	Occupation at time of injury	Executive Officer
Date of Assessment	09/10/2024	Marital Status before injury	Single

Psychiatric diagnoses	1. Post-traumatic Stress Disorder
Psychiatric treatment				Yes
Is impairment permanent?	Yes

PIRS Category

Class

Reason for Decision

Self-care and personal hygiene

2

Ms Deason reported that “she showers every second day and brushes her teeth whenever she remembers doing it.”  She is able to do household chores like vacuuming, cleaning the kitchen, washing and at times folds the washing as well.  She is able to cook things like salad, steak and chicken but her husband mostly does the cooking.

Social and recreational activities

2

Ms Deason reported that she used to play netball, soccer go to the gym about four times a week and used to go out for walks regularly.  She said that she now only goes out for walks for at least 20 minutes.  She has not returned to going to the gym and she has not returned to going to the gym or playing netball or soccer. She said that her children and one of her best friend frequently come over and visit her.  She said that her friend comes and they sit and talk and they get Chinese takeaway. She also goes out to a cafe with her partner.

Travel

1

She leaves home and is able to go on for long country drives with her partner.  She has been to Sydney twice in the last six months to drop the car with her partner and drove the car on her own on her way back.  She was able to drive for about 3½ hours without any difficulties.  She denied having any near misses or accidents.  She is also able to drive to a Psychologist who is about 45 minute drive from her home. She was also able to drive to see a Psychiatrist who was about 2 hours away from her home for the initial assessment.

Social functioning

2

Her partner has been overcome “pretty good and easy going.”  She said that he does not cause issues and have been very supportive.  She added that her son is also low-key and easy to deal with and does not cause any problem.  She said that her children come and visit her and have been very supportive.  She does not see her close friend in Sydney as much but talks to her once every couple of months.  She talks to her brother and sister occasionally as they were not that close anyway.  She said that if she needs anything, then she can call them, but they do not “text and talk all the time.”

Concentration, persistence and pace

2

Ms Deason said that “She was a big reader but she occasionally forgets what she is reading.”  She added that her attention is “very short and hence cannot focus during reading and is unable to stick to the task.”  She said that she jumps from one task to other.  She is however able to follow the movie which she had already seen.

Ms Deason was able to focus and concentrate during the assessment.  She scored 3/3 on three-word repeat and 3/3 on three-word recall.  She was not distracted and was able to give detailed replies to the questions asked.

Employability

5

Ms Deason continues to have significant anxiety and PTSD symptoms which will preclude from returning to her pre-injury duties and working with NSW Police Force.  High level of PTSD symptoms will preclude her from engaging in any form of employment currently as she does not have capacity to do the same.

Score

Median Class

1

2

2

2

2

5

=2

Aggregate Score Impairment

Total

%

+1

+3

+5

+7

+9

14

7

Deduction for pre-existing impairment = 0%.

Final WP = 7-0 = 7%”

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 she made under two of the six PIRS categories, namely social and recreational activities and concentration, persistence and pace, causing her to make errors as follows:

   (a)    in assessing a class 2 for social and recreational activities when she should have assessed a class 3, and

   (b)    in assessing a class 2 for concentration, persistence and pace when she should have assessed a class 3.

3. In summary, the State of New South Wales (NSW Police Force) (the respondent) submitted that the Medical Assessor did not err and nor did she make 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 Appeal Panel considered that the path of reasoning was inadequate, and it was not clearly discernible from the reasons given that the assessments under the contested PIRS were based upon the correct criteria, noting the history, self-report of the appellant and the other evidence before the Medical Assessor. 

6. In these circumstances of the above finding of error, the Appeal Panel considered that a
   re-examination by a Medical Assessor member of the Appeal Panel was necessary. Medical Assessor Michael Hong was appointed to conduct the re-examination, and he reported to the Appeal Panel as follows (emphasis in original):

PERSONAL INJURY COMMISSION

APPEAL AGAINST MEDICAL ASSESSMENT

REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR

MEMBER OF THE APPEAL PANEL

Matter Number:	M1-W7433/23
Appellant:	Jill Deason
Respondent:	State of New South Wales (NSW Police Force)

Examination Conducted By:	Dr Michael Hong
Date of Examination:	25 March 2025

Identification

Ms Deason is 50 years old and lives with her husband, who is a project manager. She has three adult children and two stepchildren, and the youngest, an 18-year-old stepson, lives with them.

History

Ms Deason was attested in 1998 and last worked in April 2022. She has been medically retired from the force. Because of a shoulder injury, she said in the last 20 years of her career, she had been on restricted duty on and off. Because her right arm is affected and that is her shooting arm, she performed non-operational duties, and predominantly performed supervisory work, work in custody, and also worked with exhibits for six years, mostly doing full-time work before she ceased working.

Ms Deason reported her symptoms commenced even in 1998, and she only sought help in 2022 for her mental health, after she ceased working. She encountered many traumatic events at work over the years, and said the last traumatic incident was related to a colleague, her anxieties increased and she was too distressed to continue working.

After the assessment with Dr Verma, Ms Deason's treatment has not changed. She consults Lee Francis, psychologist every 2-4 weeks, and takes Seroquel 150 mg at night. She has not had a psychiatric admission.

After the assessment with Dr Verma, Ms Deason's psychological symptoms have not changed significantly, but her anxieties and panic attacks are somewhat heightened, and she does not know why.

She has chronic sleep problems, and has nightmares and flashbacks intermittently. Her anxiety symptoms are triggered by crowded places, and she said she moved to a secluded country block to get away from people, in August or October 2024.

Ms Deason goes to the shops when it is quiet and not many people are there, or shops online. She is 15km from the town centre now.

Her weight has been stable and she said it has not been a problem over time. She said she has problems with her irritability, she is moody and snaps at her family, and does not act out physically.

She reported having major problems with her concentration and memory. She used to read books, and this has stopped because of concentration difficulties. Previously, she read biographies about Hollywood stars.

She does not have suicidal ideation.

Apart from PTSD and anxiety and depressive symptoms, Ms Deason has not had other psychiatric diagnoses.

Lifestyle

Normally, Ms Deason enjoys sporting activities and would play soccer and netball with the local club. Even though she has a shoulder injury, it did not stop her from engaging in sporting activities, although she would need physiotherapy when she had a flare-up. However, she said that after 2018-2019, her mood dropped, she became disinterested and did not want to be around people, and so she has not returned to her sports.

Previously, she also enjoyed camping as a family but again, due to motivational difficulty, she has not done that since about 2020.

Ms Deason has withdrawn from her friends and does not socialize, due to feeling overwhelmed. She refused invitations to go out to social events. She has contact with 1 main friend, and she visited her, and in August or October 2024, she moved to a remote acreage and is 45 minutes away now, and her friend only visited her once since her move. Before her move, her friend did visit her sometimes but it was not regular, and they had takeaway food at home sometimes. Even with the one friend supporting her, she struggled to go out to social venues.

She had work friends and said no one contacts her after ceasing working. She has another friend in Sydney and exchanges texts sometimes.

Ms Deason's family are in Melbourne. She texts her sister but she does not respond regularly. She said her sister always lives in Melbourne and visits rarely, and after her mother passed away in 2020, she only visited twice. She is not close to her brother, but they will exchange text once a month. Both parents have passed away.

She goes for a drive with her husband occasionally, on country roads and they avoid crowded places. They may get a coffee and then come home.

In terms of trips away, Ms Deason said there have been no trips away and no interstate travel in the past 2 years. Her last trip was in 2022, she went to America to bring her son back from his father.

She used to go to the gym, the last time was a couple of years ago. Now, she takes walks on her property only and does not have other exercises.

As a family, they order takeaway food and rarely eat out. Rarely, they have breakfast or lunch at a local café. They still get coffee from the café to come home, and she does not want to stay there as there are too many people, and crowds trigger her panic attacks.

Ms Deason's adult children live far away, in the USA and Sydney, and she does not have much contact, and said they are older and too busy.

Summary

Ms Deason had no prior psychiatric disorder, and reported that due to accumulative trauma, she developed Post-traumatic stress disorder with chronic depression and anxiety symptoms. Her condition is entrenched, there has been no change in her treatment or symptoms since Dr Verma's assessment and she continues to suffer from PTSD.”

1. The Appeal Panel considers that the examination undertaken by Medical Assessor Michael Hong was conducted in a thorough manner. The Appeal Panel notes the history Medical Assessor Michael Hong has provided in his report to the Appeal Panel, including the history as to the appellant’s ability to function in the PIRS categories that have been challenged on appeal, namely social and recreational activities and concentration, persistence and pace. The Appeal Panel notes Medical Assessor Michael Hong’s findings on clinical examination of the appellant and his diagnosis made after clinical examination of the appellant, namely that the appellant worker meets DSM-5 criteria for post-traumatic stress disorder with chronic depression and anxiety symptoms. The Appeal Panel agrees with and adopts the findings of Medical Assessor Michael Hong.

2. 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 Appeal Panel adopts the findings of Medical Assessor Hong on re-examination.

2. In terms of social recreation, the Medical Assessor in the MAC rated a mild impairment at class 2 and noted that the appellant used to enjoy various activities but stopped now and only goes for a walk for 20 minutes and that her children and her best friend frequently come over and visit her. They would talk and get Chinese take-away and she also goes to a café with her partner. The Panel noted that the appellant had moved since around the time of that assessment. She rarely eats out and generally, she only goes with her partner to get a coffee and come back home. Because of her social anxiety, she avoids being in crowded places. While she can tolerate having a friend visiting her, the friend is quite supportive and her activity with a single supportive friend, is consistent with a rating of a moderate impairment at class 3. In any case, since her move, she said that her friend only visited her once in the last few months. The Panel noted her impairment is chronic, and is consistent with 3, and that the IMEs Dr Graham George and Dr Ashwinder Anand rated  3 as well.

1. The Appeal Panel considers that based on these findings, the best fit is a moderate impairment or class 3 for social and recreational activities.

2. In respect of Concentration, Persistence and Pace, Table 11.5 of the Guides provides as follows:

   Table 11.5: Psychiatric impairment rating scale – concentration, persistence and pace

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.
Class 4	Severe impairment: can only read a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even during brief conversation. Unable to live alone, or needs regular assistance from relatives or community services.
Class 5	Totally impaired: needs constant supervision and assistance within institutional setting.

1. The Appeal Panel adopts the findings of Medical Assessor Michael Hong on re-examination.

2. In terms of Concentration, persistence and pace, the Panel notes the Medical Assessor in the MAC said that the appellant did the three word test accurately and could pay attention and focus during the assessment. The Medical Assessor in the MAC said that the appellant was a big reader but now she has very short attention and cannot read. She placed significant emphasis on the appellant’s ability to do a three word test and is able to respond to questions asked during that assessment. The Appeal Panel notes there was consistent evidence that the appellant suffered from impaired concentration and inability to perform intellectually demanding tasks such as reading books. Given the three word test only required about five minutes, and the confirmed history including on re-examination that the appellant was normally an avid reader but cannot read now, the overall evidence is consistent with a rating of 3. The Appeal Panel notes the independent medical experts
   Dr George and Dr Annand also rated 3 as well and said that she could not get back into reading.

3. The Appeal Panel considers that based on these findings, the best fit is a moderate impairment or class 3 for concentration, persistence and pace.

4. What this means is that the classes assessed by the Appeal Panel for the contested PIRS categories of social and recreational activity and, concentration, persistence and pace have both been revoked on appeal.

5. This means the calculations become as follows:

Score								Median Class
1	2	2	3	3	5		=3
Aggregate Score Impairment						Total			%
+1	+3	+5	+8	+11	5	16			17

1. This means the MAC will be revoked.

2. For these reasons, the Appeal Panel has determined that the MAC issued on
   17 October 2024 should be revoked and a new MAC issued. The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W7433/23
Applicant:	Jill Deason
Respondent:	State of New South Wales (NSW Police Force)

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 Surabhi Verma 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 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)
1. Psychological Injury	1.3.22 (deemed)	Chapter 11 Guidelines 11.1-11.3 11.4-11.6	Guidelines 11.11,11.12 Table :11.1,11.2,11.3,11. 5,11.5,11.6	17%	0%	17%
Total % WPI (the Combined Table values of all sub-totals)					17%

The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.