Denshire v Medecins Sans Frontieres Australia Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Denshire v Medecins Sans Frontieres Australia Ltd [2025] NSWPICMP 678
APPELLANT:	Steven Denshire
RESPONDENT:	Medecins Sans Frontieres Australia Limited
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Ash Takyar
DATE OF DECISION:	5 September 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC) with respect to psychological injury; allegation of apprehended bias; Chamoun v District Court of New South Wales, and BW v Secretary, Department of Communities and Justice; assessment under the psychiatric impairment rating scale (PIRS); Jenkins v Ambulance Service of New South Wales, Ballas v Department of Education, Tasevski v Westpac Banking Corporation, and Lancaster v Foxtel Management Pty Ltd; Held – MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 27 May 2025 Steven Denshire lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Nicholas Glozier, who issued a Medical Assessment Certificate (MAC) on 29 April 2025.
Mr Denshire relies on the grounds of appeal under s 327(3)(c) and (d) 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.
The President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was capable of being made out, being that the Medical Assessor erred in his assessment under the Psychiatric Impairment Rating Scale (PIRS) table for social and recreational activities. We conducted a review of the original medical assessment, limited to the grounds 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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Mr Denshire suffered post-traumatic stress disorder as a result of deployments with Medecins Sans Frontieres Australia Limited (MSF) as a logistics manager between 2014 and 2016 in South Sudan, Iraq, Sierra Leone and Ukraine. The injury was deemed to have been suffered on 23 November 2015.
The Medical Assessor diagnosed post-traumatic stress disorder. Using the PIRS, he assessed 7% whole person impairment (WPI), placing Mr Denshire in class 1 for self-care and personal hygiene, travel and concentration, persistence and pace. He considered that Mr Denshire was in class 2 for social and recreational activities, class 3 for social functioning and class 4 for employability. The Medical Assessor allowed 1% for the effects of treatment.

PRELIMINARY REVIEW

We 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, we determined that it was not necessary for Mr Denshire to undergo a further medical examination because there is sufficient information in the file to determine the appeal.

EVIDENCE

We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC, and of the other evidence in the file, that are relevant to the appeal are set out in our reasons below.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but we have considered them. Some of the submissions are set out in more detail where relevant, below.
In summary and in submissions prepared by Ms Grotte of counsel, Mr Denshire submitted that the Medical Assessor was required to assess the degree of permanent impairment resulting from post-traumatic stress disorder and the “secondary effects of that injury.” His submissions quoted extensively from the report of Dr Young, retained on behalf of MSF and read, in part:
“The causal relationship between the work injury and the secondary effects which impacted on his relationships which then impacted on the breakdown leading to court cases and his former wife taking his children away to another country is not controversial and was not in dispute, given Dr Young’s opinion, the absence of any evidence in respect of mental health problems prior to the work injury, and the Appellant’s own evidence regarding the enduring harm of the work injury.”
Mr Denshire submitted that the Medical Assessor made a demonstrable error in that he displayed apprehended bias when he wrote:
“After his injury he reestablished his carpentry business, obtained his residential builder’s licence, married, had two children, went through a messy divorce, was engaged in long complex and highly costly court cases, had to sell one house to pay the nearly $500,000 of various legal fees, has no contact at all with any of his children and is still involved in complex legal matters trying to obtain access to them in another country. Further he has had repetitive knee injuries, operations and remains impaired such that he is unable to do some of his physical activities. Given all this, the idea that his current mental state is entirely caused by his Posttraumatic Stress Disorder is medically risible, but given the legal definition of causality and recent cases, I have accepted that his mental state is caused by his condition.” (emphasis in submission)
Mr Denshire submitted that
“the use of the word ‘risible’ reveals contempt on the part of the MA for legal causation principles and for judicial review decisions of the Supreme Court…and is clearly intended to convey contempt for the idea of a legal causal nexus between the injury and the subsequent events in the Appellant’s personal life.”
Referring to the High Court decision in Ebner v Official Trustee in Bankruptcy,[1] Mr Denshire submitted that apprehended bias “is established if a fair minded and reasonably informed observer … might reasonably apprehend that a decision maker might not bring an impartial mind to the resolution of the question which is to be decided.” He said that the Medical Assessor failed to consider and engage with the evidence that supported the secondary effects of the work injury and submitted that:
“The failure to properly engage with this evidence together with the statement referred to above …, leads to the Appellant apprehending bias and a lack of an impartial mind being brought to bear.
The MA’s statement that he accepts the worker’s mental state is caused by his condition does not cure the offence. It is respectfully submitted that given his statement of contempt for the applicable legal principles, the MA cannot have brought a neutral and impartial mind to the statutory task of impairment assessment resulting from the injury and its effects, particularly when he has not properly evaluated the evidence.”
[1] (2000) 205 CLR 337, 344 at [6].
Mr Denshire said it was not possible to have confidence in the outcome and the Medical Assessor’s PIRS assessments, so that the MAC should be revoked and a re-examination undertaken.
Turning to the PIRS, Mr Denshire submitted that the Medical Assessor made demonstrable errors and applied incorrect criteria in his assessments under the PIRS tables for self-care and personal hygiene, social and recreational activities, social functioning and concentration, persistence and pace. Somewhat inconsistently with the submission that a re-examination was required, Mr Denshire set out the assessments he said should have been made, which would result in an assessment of 18% WPI.
In reply, MSF submitted that the submissions as to apprehended bias had no merit and that the Medical Assessor undertook a detailed review of the evidence, accepted the diagnosis of post-traumatic stress disorder and assessed permanent impairment.
With respect to the PIRS, MSF submitted that the Medical Assessor explained his reasoning in respect of each of the tables and that the MAC did not contain a demonstrable error.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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[2] the Court of Appeal held that an 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.
[2] [2006] NSWCA 284.
In Queanbeyan Racing Club Ltd v Burton[3] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[3] [2021] NSWCA 304 at [26].

Apprehended bias – legal principles

In Chamoun v District Court of New South Wales[4] Gleeson JA, with whom the other members of the Court of Appeal agreed, said:
“The test for determining whether a judge is disqualified by reason of the appearance of bias is ‘whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide’: Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11]; Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [31].
…
The application of the apprehension of bias principle requires two steps. The first is the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits. The second is that there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [8]; Michael Wilson & Partners v Nicholls at [63].
Accordingly, an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. The question is not whether the judge had in fact prejudged an issue: Michael Wilson & Partners v Nicholls at [67].
…
The effect of a statement that might indicate pre-judgment can be removed by a later statement which withdraws or qualifies it depending on the circumstances of the particular case. That is because “the hypothetical observer is no more entitled to make snap judgments than the person under observation” :Johnson v Johnson at [14] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
As Dawson J emphasised in Re JRL; Ex parte CJL(1986) 161 CLR 342 at 372; [1986] HCA 39, the whole of the circumstances to be considered are not confined to the impugned conduct for suspecting a lack of impartiality, they include what was done by the judge subsequently, which may be sufficient to eradicate any reasonable apprehension of bias notwithstanding an earlier lapse in the observance of proper procedures.”
[4] [2018] NSWCA 187 at[35]-[45].
In BW v Secretary, Department of Communities and Justice[5] (BW), Faulkner J said that “the fair-minded lay observer is taken to have knowledge of the legal statutory and factual context in which the decision is to be made.”
[5] [2024] NSWSC 1354 at [144], citing Isbester v Knox City Council (2015) 255 CLR 135 at 146-147; [2015] HCA 20 at [23].

Consideration

The Medical Assessor is tasked with determining the degree of WPI by undertaking an examination and preparing a report, based on his observations on the day of the examination and using his own clinical judgement. The Medical Assessor is therefore an administrative decision maker and the correct approach to review of his decision is described in the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang[6] where the High Court approved the statement of principle in a decision of the full Federal Court:
“… a court should not be concerned with looseness in the language nor with unhappy phrasing of the reasons of an administrative decision-maker. … the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error."
[6] [1996] HCA 6, 185 CLR 259, 272.
The argument that the Medical Assessor’s comments gave rise to an apprehension of bias turns on his use of “medically risible” in the passage quoted at [13] above in the Medical Assessor’s summary of injuries and diagnoses. The use of “risible” was a poor word choice. However, we do not agree that the connotation is as suggested in Mr Denshire’s submissions and that the Medical Assessor intended to convey contempt for legal concepts of causation and the judicial review decisions in the Supreme Court.
It is important to remember that the Medical Assessor is providing a summary of the injuries and diagnoses in the impugned paragraph. The passage as a whole reads:
“Mr Denshire quite clearly describes the onset of symptoms of Posttraumatic Stress Disorder following exposure to numerous criterion A events during his time at Medecins Sans Frontieres. Following this he received treatment including repetitive series of psychotherapy, antidepressant medication. After his injury he reestablished his carpentry business, obtained his residential builder’s licence, married, had two children, went through a messy divorce, was engaged in long complex and highly costly court cases, had to sell one house to pay the nearly $500,000 of various legal fees, has no contact at all with any of his children and is still involved in complex legal matters trying to obtain access to them in another country. Further he has had repetitive knee injuries, operations and remains impaired such that he is unable to do some of his physical activities. Given all this, the idea that his current mental state is entirely caused by his Posttraumatic Stress Disorder is medically risible, but given the legal definition of causality and recent cases, I have accepted that his mental state is caused by his condition. This PTSD impairs him in social areas associated with irritability, conflict, intolerance. Notably today the symptoms he reported, and specifically addressed in the assessment, were quite different to that in his statement, e.g. sleeping, flashbacks, nightmares, easily startled, none of which were reported today and some of which clearly contradicted. His statement does acknowledge that his impairment is almost entirely within the social realm.”
When the paragraph is read as a whole, it shows that the Medical Assessor accepted that he was required to assess Mr Denshire as he presented on the day of the examination, despite the numerous other stressors that Mr Denshire has suffered since the injury which may have impacted on his mental health. That is, when the whole paragraph is read, it contains later statements which have the effect of withdrawing the unfortunate description previously used.
MSF did not dispute that Mr Denshire suffered post-traumatic stress disorder. The referral to the Medical Assessor took place without any questions being determined by the Commission. It does not necessarily follow from the lack of dispute as to injury that every setback in Mr Denshire’s life since the injury is a result of the injury. One example is the anterior cruciate ligament injury to his knee in 2019 and the extensive surgery that has been undertaken – Mr Denshire said in his statement dated 27 November 2023 that he has had seven operations and extensive time off work. Inevitably, that condition would have impacted on his psychological state. Dr Young, who saw Mr Denshire at the request of MSF, sought to make a deduction in respect of it, on the basis that it was a secondary psychological injury. The Medical Assessor did not diagnose a secondary condition.
When the Medical Assessor’s summary of injuries and diagnoses is considered in context and as a whole, it becomes apparent that he did not consider, on a medical basis, that post-traumatic stress disorder was the only cause of Mr Denshire’s mental state. However, he went on to say that he accepted that it was for the purpose of his assessment and assessed Mr Denshire as he presented on the day of the examination. The Medical Assessor explained that the ongoing impact of post-traumatic stress disorder is on Mr Denshire’s social interactions and that there has been significant improvement in many of his symptoms since his statement and other medical reports were prepared.
Another passage in the MAC is taken out of context to support the allegation of apprehended bias. The submissions read:
“At page 3 of the MAC, the MA referred to ‘problems described in the first few months all entirely to do with his separation, relationships, ongoing court cases around child custody … with no significant post-traumatic stress disorder symptoms or behaviours noted”. Again, it appears that the MA considered these sequelae were separate from the work injury and not causally connected in any way.”
Reading that passage in the MAC in context shows that the Medical Assessor was not expressing his opinion but was commenting on the notes of Mr Denshire’s psychologist, Mr Hatfield. The Medical Assessor said:
“When he saw his current treating psychologist in April 2023, his symptoms were of borderline clinical significance according to the DASS and he actually appeared quite well, seeing the psychologist primarily ‘to improve my mental health and gain coping mechanisms to help me be a better father.’ The problems described in the first few months all entirely to do with his separation, relationships, ongoing court cases around child custody and building, inability to return to be a builder due to his knee injury, with no significant PTSD symptoms or behaviours noted. The psychologist confirms the fluctuation in mental state relating to the court case and child custody stressors and the treatment provided, as well as Mr Denshire’s use of much of this treatment, strategies and exploration of other aspects of wellbeing including podcasts, becoming sober, and physical activity.
The psychologist notes a deterioration of Mr Denshire’s symptoms over treatment caused by the court cases such that by December 2023 he was considerably worse…”
A review of Mr Hatfield’s notes in the Application to Resolve a Dispute shows that the first consultation was on 3 April 2023. A questionnaire contains a bald reference to a diagnosis of post-traumatic stress disorder. Mr Hatfield administered the Depression, Anxiety and Stress Scale (DASS 21) and noted that Mr Denshire’s scores were moderate for depression, mild for anxiety and normal for stress. The Medical Assessor said that those scores were of borderline clinical significance. The medical members of this Panel consider that these scores support that there was some mood disturbance with anxiety.

Mr Denshire saw Mr Hatfield on 12 April 2023 who recorded that the presenting problems were “separation and relationship to children”, two ongoing court cases and ongoing uncertainty relating to work. The injury was recorded as part of the “relevant history.” The notes show that the injury was discussed in some more detail on 10 May 2023 but there are many consultations where it was not mentioned.

Comments on other evidence

Much of Mr Denshire’s submission as to apprehended bias turns on the Medical Assessor’s failure to engage “with the evidence”. Mr Denshire said:
“In the present case, the MA failed to consider and engage with the evidence that supported the secondary effects of the work injury and the causal relationship between the work injury and the Appellant’s current mental state, such as Dr Young’s opinion, the evidence from the Appellant as to the absence of any mental health problems prior to the work injury and the Appellant’s own evidence regarding the enduring harm of the work injury and the persisting symptoms which caused the breakdown in his relationships and the ongoing sequelae caused by those breakdowns including the court case, the legal costs and the removal of the Appellant’s children to another country.”
As Faulker J said in BW, the fair minded lay observer is taken to have knowledge of the factual and legal context in which the decision is made. There is little evidence from treating practitioners in the file and nothing from the general practitioner and two psychologists that Mr Denshire saw in 2016. Though Mr Denshire said in his statement dated 27 November 2023 that he started seeing Dr Cook [sic, Cooke] in 2016, the notes commence in April 2018 and there is no reference to the injury until 4 October 2018. Dr Cooke prescribed Zoloft. The next references to a psychological condition are on 19 and 27 August 2019 and then on 13 July 2020 when Dr Cooke diagnosed anxiety/depression in the context of relationship problems. Mr Denshire began to see Mr Hatfield in 2023.
Mr Denshire submits that the Medical Assessor should have considered and engaged with other evidence as to his mental state, such as Dr Young’s report. Dr Young saw Mr Denshire at the request of MSF in late August 2024 and reported on 16 September 2024.
One of the passages from Dr Young’s report on which Mr Denshire relied described the onset of symptoms on Mr Denshire’s return to Australia in 2016:
“He said that on return to Australia he knew that the environment was less dangerous, but he began to experience further increase in severity of symptoms with increased anxiety and what he described as fear and dread. He said he felt unsafe, experienced persistent insomnia, night sweats, reduced appetite, weight loss, poor energy, and motivation, social withdrawal, and reported feeling spontaneously tearful for no identifiable reason. He described continuing experiencing intrusive thoughts and images of traumatic events with which he had been involved or witnessed.”
Dr Young said:
“He describes continuing symptoms including marked irritability which has resulted in difficulties in social interactions and attributes as being responsible for deterioration in the relationship with his former partner, as well as ongoing difficulties in his current relationship.
…
Currently he continues to experience intrusive, thoughts, and images of traumatic events. He continues to feel out of control of his emotions with marked irritability and said that he spontaneously burst into tears once or twice per week. He continues to experience poor sleep with disturbing nightmares weekly. He continues to experience intrusive thoughts regarding traumatic events. Although this occurs only occurring about once weekly, he experiences marked distress and anxiety, with increased respiratory and heart rate, and sweaty palms persisting for around two hours. As a result of his symptoms there he is socially withdrawn, avoiding public places and interactions with others because of irritability, hypervigilance and hyperreactivity. He also avoids other triggers such as watching the news. He feels guilty and self-critical about his irritability and aggressive behaviour.”
Those passages contrast the symptoms experienced immediately following the injury with those experienced at the date of Dr Young’s examination.
Dr Young’s report does not support the submission that he accepted that all of Mr Denshire’s condition resulted from the injury. He said:
“.... As noted clearly there has been some effect from his knee injury, however his family situation can be seen largely as a secondary effect of PTSD and associated behaviour.
…
As above apportionment of the psychiatric injury is predominately related to his employment with MSF. The effects of the physical injury are secondary symptoms, there is no reliable method of apportionment and I think it is reasonable to apportion 10% as secondary.”
Dr Young sought to apportion one-tenth of his assessment to a secondary psychological condition. After rounding, one-tenth became a 1% deduction from the total assessed. Dr Young’s assessed 12% WPI. In a second report dated 5 March 2025 (which did not result from a further examination) he allowed 1% for the effects of treatment, resulting in an assessment of 13% WPI. Both of those assessments are below the threshold to recover compensation.
The Medical Assessor commented on the reports of Dr Young and of Dr Kumagaya, who examined Mr Denshire at the request of his own solicitors, as he was alerted to do by the standard MAC template. The Medical Assessor contrasted his assessment with that of Dr Kumagaya:
“Over a year ago Dr Kumagaya saw Mr Denshire in the immediate aftermath of a quite devastating court case and understandably his condition, symptoms and impairment were worse at the time, as also corroborated by his treating clinician. As a result I disagree with almost all of the PIRS categories, although in one case I have actually rated him as more impaired.”
The Medical Assessor considered the report of Dr Young, saying:
“This was in the context of issues in late 2024 where he would appear to have been more symptomatically affected and impaired, and with a somewhat unstable home basis. I again agree with Dr Young’s diagnosis. I agree with Dr Young in terms of his ascertainment of travel, social functioning, but disagree with those in the other classes for the same reasons as I disagree with Dr Kumagaya, and note that I rate him as slightly more impaired in terms of employability and that his impairments do appear to represent islets of certain areas of functioning as described above. I don’t quite understand Dr Young’s ‘adjustment for pre-existing secondary condition’ of 1% as there was no pre-existing condition”
It is not correct to say that the Medical Assessor did not engage with the opinions of the independent medical examiners. He commented on their reports and explained why he disagreed.
Importantly, the Medical Assessor was not required to adopt or choose between the other opinions in the file and is required to form his or her own opinion. In State of New South Wales (NSW Department of Education) v Kaur[7] (Kaur) Campbell J said:
“In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]:
‘The material supplied to a medical panel may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or 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 perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’
Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular, it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise. It is sufficient, as their Honours pointed out at [55], that:
‘The statement of reasons… explain the actual path of reasoning in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law’.”
[7] [2016] NSWSC 346.
The Medical Assessor is directed by the standard MAP template to comment on other opinions and provide the reasons why his or her opinion differs. That is so the parties understand how and why a different result was reached, not because the Medical Assessor is required to agree with or choose between the previous assessments. The fact that another assessor made a different observation on a different day should not influence the Medical Assessor’s opinion.

The Medical Assessor’s task

The Medical Assessor was required to assess Mr Denshire as he presented on the day of the examination and to use his own clinical judgement in making his assessment.[8] His opinion was that Mr Denshire’s condition had improved since late 2024. The Medical Assessor said:
“Mr Denshire was internally consistent in his history today, although inconsistent with his statement, e.g. he has re-engaged with his on/off partner of some years, now resides with his brother and not in a van, that this is driven by his financial choice, and his symptoms are quite markedly improved with this stability. As such, at any given time his state is likely to be somewhat different, e.g. his latest statement would appear to have been at a time when he was psychiatrically worse in terms of symptoms and impairment, but has improved since that time with this stability of accommodation and increased local engagement. As such his impairment is likely to fluctuate within a range for the coming years, in part determined by his social situation, context, legal issues etc, and he can be considered as being relatively consistent and having reached maximum medical improvement.”
[8] Guidelines paragraph 1.6.
Before commenting on the other opinions in the file, the Medical Assessor said:
“My comments regarding Mr Denshire’s statements which provides his opinion of his state at that time and how it differs from that elicited today, have been included above and we addressed this within the assessment. I have used his statement and have commented extensively on the contemporaneous notes of his treating clinicians. This is particularly true with their views regarding the causes of his presentation over years. Of note, his psychologist describes considerable improvement since the resolution of the court case and notably does not mention any cognitive difficulties throughout. Neither clinician identify any impairment in any domains of self-care. This would corroborate that his impairment is restricted to that of social, communication and relationship domains.”
At the end of that section of the MAC the Medical Assessor said:
“Although a few of the examples of function identified in the statement might indicate a certain class of PIRS category, in each case these examples have been considered and my rating made not just on subjective self-report but incorporating many other examples in the evidence and assessment that support a different class.”
The Medical Assessor took some care to explain the reasons for disagreement with other assessments, based mainly on the significant improvement that Mr Denshire experienced in the months leading up to the Medical Assessor’s assessment.
An Appeal Panel is only permitted to re-examine a worker if it has determined that the Medical Assessor has made a demonstrable error or applied incorrect criteria. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales Davies J said:[9]
“…if an assessment can be carried out in the course of an appeal that assessment cannot take place before the Appeal Panel has determined that there is an error in the certificate leading to the need for a further assessment. Such an assessment may be needed because the Panel, although in a position to revoke a certificate for error, is not in a position to issue a new one without such an assessment.”
[9] [2013] NSWSC 1792 at [33].
An Appeal Panel cannot re-examine to determine if there is an error or to determine if a different result would be obtained on a different day.
As observed above, the Medical Assessor used the wrong word when dealing with questions of causation. Despite that, the MAC reveals that he understood that his task was to assess Mr Denshire on the basis that subsequent events were a consequence of the injury. For the reasons set out above, we do not agree that the assessment reveals apprehended bias requiring a re-examination.

Assessment under the PIRS

Before we consider each of the impugned assessments under the PIRS, it is relevant to observe that the important part of the description of each class is the level of impairment – e.g. no deficit, mild impairment, moderate impairment. The PIRS recognises that there a range of conduct which can be described as normal. Assessment in class 1 is appropriate where there is “no deficit or minor deficit attributable to the normal variation in the general population”.
Rather than providing criteria for assessment, what follows the description of the level of impairment in each class are some examples of limitations on activities which are consistent with the level of impairment. In Jenkins v Ambulance Service of New South Wales (Jenkins)[10] Garling J said:
“I am satisfied that the descriptions of the activities which give rise to a conclusion by an AMS of the extent of a disability of an individual by reference to each table in the PIRS, are simply, in my view, examples of activities which would indicate an assessable level of disability. Those examples, on their face, are not necessary to be found in each case, but may, in any particular case, be sufficient to support a conclusion as to the level of disability.”
[10] [2015] NSWSC 633 at [65].
In Ballas v Department of Education (State of NSW) (Ballas),[11] Bell P and Payne JA explained the operation of the Guidelines:
“Even if there may, as a matter of English language, be some overlap between some of the scales or categories of functional impairment, for the purposes of the WPI assessment exercise, particular conduct will fit within one or other of the scales. This calls for the correct characterisation of the conduct, ie whether it goes to ‘self care and personal hygiene’, ‘social and recreational activities’, ‘travel’, ‘social functioning (relationships)’, ‘concentration, persistence and pace’ or ‘employability’. This does not involve an exercise of discretion. If conduct is wrongly assigned to one scale, when it should have been assigned to another, this will result in the AMS taking into account an irrelevant consideration in the context of assigning a class to each of the distinct scales. This will inevitably bear upon the calculation of the WPI which is critical for an injured worker’s entitlement to compensation.”
[11] [2020] NSWCA 86 at [94-[95].
In Tasevski v Westpac Banking Corporation,[12] Schmidt AJ said:
“There are many things in life, medicine and the law which reasonably permit of more than one answer. Assessment of the degree of a person’s impairment is one of them. Inevitably, in a case where it is the impairment of a human being as the result of a psychological injury which is being assessed, consideration must be given to matters of degree and impression, about which reasonable minds may differ.
But that is what this statutory scheme seeks to regulate by its adoption of the applicable Guidelines. They require conclusions to be reached about the severity of an impairment by a determination of which scale particular conduct relates to and the resulting class assignment of that scale, by reference only to that conduct, considered in light of the person's cultural background, age, sex and cultural norms. ...
By confining the assessment of the six scales to the totality of the conduct relevant to each scale, an overall conclusion is arrived at about the injured person’s whole person impairment, as the result of the psychological injury suffered. That is a result not left to an assessor’s discretion. It must be undertaken in accordance with all of the applicable statutory requirements.
Class assignment of one scale thus does not permit account to be taken of conduct relevant to another scale, because, as explained in Ballas, scale assignment of conduct can only have one conclusion. The statutory scheme thus requires an assessor to reach a conclusion about the correct class assignment for that scale, by considering the relevant conduct in light of the class description, which is given by way of example.
When the Guidelines require the assessor to assign particular conduct to the relevant scale and then assign each scale to one of the statutory classes, the assessor undoubtedly has to exercise a degree of clinical judgment: Ballas at [93]. That is what gives rise to the possibility that reasonable minds may differ. But still the exercise which the assessor has to undertake in arriving at a conclusion about the correct class is confined by the considerations which the Guidelines require. Assignment of conduct to the relevant class is not left to be determined as a matter of discretion.”
[12] [2024] NSWSC 401 at [27]-[31].
There is no doubt, based on the information in the file, that Mr Denshire has suffered significant consequences of post-traumatic stress disorder. The history that he gave to the Medical Assessor contrasted with his statements and the Medical Assessor said:
“’Mr Denshire was internally consistent in his history today, although inconsistent with his statement, e.g. he has re-engaged with his on/off partner of some years, now resides with his brother and not in a van, that this is driven by his financial choice, and his symptoms are quite markedly improved with this stability. As such, at any given time his state is likely to be somewhat different, e.g. his latest statement would appear to have been at a time when he was psychiatrically worse in terms of symptoms and impairment, but has improved since that time with this stability of accommodation and increased local engagement. As such his impairment is likely to fluctuate within a range for the coming years, in part determined by his social situation, context, legal issues etc, and he can be considered as being relatively consistent and having reached maximum medical improvement.”
Mr Denshire’s submissions sought to stress that the Medical Assessor did not have regard to the “evidence” about his claim and contrasted his findings with evidence which supported a different finding. To that extent, his submissions did not take account of the Medical Assessor’s task. While the Medical Assessor is required to have regard to the history disclosed in the file and to comment on the opinions of others, his task was, as pointed out in Kaur, to conduct an examination and reach his own opinion.

Self-care and personal hygiene

The Medical Assessor assessed Mr Denshire in class 1 because:
“He describes fully looking after himself whilst living at home on his own, spending much of the day doing household chores. He manages all of his own self-care and cleaning. Although he reports a reduced appetite, he has in fact lost no weight for some three years, indicating an adequate food intake for his level of activity. He takes food supplements and engages in regular exercise when able to. He undertakes activities specifically to improve his neuroplasticity following health podcasts. Although he says he has takeaway and McDonalds at times, this is entirely within the normal range of a male living on their own in their mid-30s and in fact nowadays for much of the population. Any deficit is attributable to this normal population variation.”
The Medical Assessor set out the history to support that assessment under the heading “Social Activities/ADL”:
“Currently he lives in a small unit on his brother’s rural property. He describes undertaking all of the home chores that is needed to maintain this, as well as doing other odd jobs such as gardening, ‘tinkering’ and lawnmowing both for himself and family. He describes no problems with his self-care. He said he does not have much of an appetite, but his weight has been stable at 95kg for three years now. He described numerous wellbeing activities including attempting to undertake physical activity within his limitations, diet supplementation, meditation, and podcasts. His free gym membership has run out and so he stopped a month or so ago, and the recent knee re-injury would prevent this anyway. He might get takeaways sometimes but his description of this appeared to be entirely within the range of the normal population, where takeaway is now fairly commonplace. He regularly sleeps throughout the night, not waking with sweats and arousal as he used to, getting up around 7-7:30am, gaining a normal, or even a slightly over-normal, sleep duration. He will then get up, have a coffee, and spends much of the day doing his house chores and various wellbeing activities.”
The Medical Assessor also recorded his own observations made during the videoconference assessment:
“Mr Denshire was assessed in his bedroom. There were no signs of disarray and he was well kempt and presented.”
Mr Denshire submitted that the Medical Assessor made a demonstrable error because class 2 was a more appropriate assessment and the evidence on which the Medical Assessor relied “applies equally to class 2”. He said:
“It is respectfully submitted that Class 2 is more appropriate because the Appellant is socially isolated, generally dysphoric, struggles with irritability and dealing with people, avoids crowds and groups, has developed strategies to look after himself including numerous well-being activities, and avoids social communication.
The picture that emerges is not of a person who is functioning with no deficit or a deficit within the normal variation of the general population. The Appellant continues to be unwell and clearly continues to exhibit deficits. Class 2 is a more appropriate assessment.”
That submission does not take account of the description of the Medical Assessor’s task in Tasevski nor to activities relevant to an assessment of self-care and personal hygiene. Table 11.1 assesses a worker’s ability to live independently and maintain a level of hygiene and nutrition. The Medical Assessor turned his mind to Mr Denshire’s ability to do so at the time of his examination. He was not required to consider his past functioning and he noted that there have been significant changes in Mr Denshire’s living arrangements since Dr Young’s examination.
As the cases summarised above show, Mr Denshire’s social isolation does not fall to be considered the assessment of self-care and personal hygiene.
Harrison AsJ highlighted in Ferguson in Parker v Select Civil Pty Ltd[13] that a demonstrable error requires more than an allegation that another assessment is “more appropriate”. Her Honour said:
“To find an error in the statutory sense, the Appeal Panel’s task was to determine whether the AMS had incorrectly applied the relevant Guidelines including the PIRS Guidelines issued by WorkCover. Even though the descriptors in Class 3 are examples not intended to be exclusive and are subject to variables outlined earlier, the AMS applied Class 3. The Appeal Panel determined that the AMS had erred in assessing Class 3 because the proper application of the Class 2 mild impairment is the more appropriate one on the history taken by the AMS and the available evidence.
The AMS took the history from Mr Parker and conducted a medical assessment, the significance or otherwise of matters raised in the consultation is very much a matter for his assessment. It is my view that whether the findings fell into Class 2 or Class 3 is a difference of opinion about which reasonable minds may differ. Whether Class 2 in the Appeal Panel’s opinion is more appropriate does not suggest that the AMS applied incorrect criteria contained in Class 3 of the PIRS. Nor does the AMS’s reasons disclose a demonstrable error. The material before the AMS, and his findings supports his determination that Mr Parker has a Class 3 rating assessment for impairment for self-care and hygiene, that is to say, a moderate impairment of self-care and hygiene…”
[13] [2018] NSWSC 140 at [70]-[71].
The Medical Assessor did not err in assessing Mr Denshire in class 1 for self-care and personal hygiene.

Social and recreational activities

Mr Denshire said that the Medical Assessor should have assessed him in class 3 rather than class 2.
The heading of Table 11.2 is Social and recreational activities but the examples deal only with attending social events. Those for classes two and three are:
“Class 2: Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved.
Class 3: Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.”
The Medical Assessor gave reasons for his assessment in class 2:
“He now engages in some social and recreational activities. He walks down to the beach each day. He is learning to play the piano and his volunteer activities, which although not frequent, have a recreational and social component to them, particularly that within the youth club although he is not actively involved in the latter. He has avoided some music concerts that his brother has organised and thus has a mild impairment in this domain.”
The history in the body of the MAC includes:
“He is teaching himself the piano through YouTube and follows podcasts and uses meditation apps. He says he is somewhat isolated on the property. However his sister-in-law is the CEO of OzGreen. He joins native treeplanting and tree-clearing working bees every month or so. A couple of times a month he works as a handyman at the Bellingen Youth Hub. This is volunteer work where he will do carpentry and related jobs. He has made friends with the guy who runs this, ‘Nick.’ He has not yet joined Men’s Group and generally avoids more social communication, in large part because he feels anxious and knows of his irritability and difficulty communicating, as well as the fact that he no longer drinks.”
Mr Denshire’s submitted that the table “is not about being able to carry on recreational activities on one’s own, alone. This category is measuring the ability to engage socially in a recreational way with others.”
The submission that the table only applies to activities undertaken in company did not refer to Ballas, though may be based on comments at [100] of that decision. However, the Court of Appeal was considering in that paragraph the level of satisfaction required of the President’s delegate as a gatekeeper in determining whether a medical appeal should proceed to an appeal panel. As Basten AJ said in Lancaster v Foxtel Management Pty Ltd:[14]
“The proposition that gambling (or running) may fall within the descriptor ‘social and recreational activities’ if carried out in company (whatever that might imply) but not if carried out alone, and the assessment by a medical specialist whom a court determined had failed to apply that distinction so as to render his or her determination a nullity would be a surprising consequence. It would involve reading down the term ‘recreational’ by reference to the generic and imprecise exemplars in the class descriptions, so as to impose a legal constraint on the valid exercise of power by the medical specialist.”
[14] [2022] NSWSC 929.
While many of the examples in the table refer to activities undertaken in company, the heading of the table refers also to recreational activities. A person who is psychiatrically unwell may lose interest in previous recreational activities which brought pleasure as well as being reluctant to undertake activities with other people. We do not agree that the Medical Assessor was wrong to consider the fact that Mr Denshire has taken up a new hobby in learning to play the piano. The Medical Assessor also considered Mr Denshire’s social interaction and his participation in tree planting and working at the Bellingen Youth Hub.
The thrust of Mr Denshire’s submission is that the Medical Assessor should not have considered recreational activities which were not social. Even if the recreational activities undertaken alone were disregarded, the Medical Assessor was not in error to assess Mr Denshire in class 2.

Social functioning

The Medical Assessor assessed Mr Denshire in class 3 and said:
“He retains a close and supportive relationship with his father, his mother, his brother and sister-in-law as well as his sister in Armidale. There is however tension at times. He has married since the injury and this did not last, with a very messy divorce. Since then he has had two further relationships for many months, the last of which I somewhat tumultuous and the contemporaneous evidence indicates that there are other causes for this.”
Mr Denshire said that the Medical Assessor should have assessed him in class 4 and that the Medical Assessor “ignored the evidence before him” that he has been unable to form long term relationships, stressing the breakdown of his marriage and that he was “deemed to be a danger to his kids.” He said that the Medical Assessor focussed on relationships with family members who he was not living with. He stressed significant interpersonal issues, evidenced by a general practitioner refusing to see him again in mid 2021. Mr Denshire said that Dr Young accepted that the impact on his relationships were “secondary effects” of his psychological injury.
However, Dr Young assessed Mr Denshire in class 3 and not class 4 in his first report dated 16 September 2024 and maintained it in his second report dated 10 March 2025. He did not see Mr Denshire again for the purpose of that report but commented on a second report from Dr Kumagaya, who saw Mr Denshire on one occasion in February 2024.
The information in the file about the breakdown of Mr Denshire’s marriage is from his perspective and the reference to being “deemed to be a danger to his kids” are his words. Mr Denshire’s general practitioner’s note for 25 March 2024 records that his former wife severed his contact with his children and a note for 9 July 2024 sets out some of the allegations made against him, but it is not clear if the allegations were made in proceedings in Australia or Mexico.
On the same day, Mr Hatfield wrote a report in support of Mr Denshire’s claim for access to his children which said he is “capable of providing a safe and nurturing environment for his children”.
The Medical Assessor said that the main impact of Mr Denshire’s injury is in the social realm. The assessment of social functioning requires consideration of all of a worker’s relationships. Mr Denshire has maintained relationships with his parents and siblings. The Medical Assessor was told that Mr Denshire has made a new friend through his volunteer work at the Bellingen Youth Hub. He has been capable of forming new romantic relationships – one for nine months and one for about three years, though there were challenges in that relationship and he had broken up with his partner two weeks before the examination by the Medical Assessor. He was in a relationship for most of the last four years. When compared to normal variation in the general population, as the PIRS requires, those are not short relationships.
Based on the history obtained by the Medical Assessor, and such contemporaneous information as there is, assessment in class 3 for social functioning does not disclose error.

Concentration, persistence and pace

The Medical Assessor assessed Mr Denshire in class 1 because:
“He reported today no problems in concentration, persistence and pace and showed no deficit in any aspect of this for over 80 minutes of the assessment with good focus, responses, and no loss of attention. His treating clinicians have not indicated any deficits in this area and in fact his treating psychologist has applauded his improvements in many of these related domains. He is teaching himself to play the piano by following YouTube, can binge-watch Netflix series, is an avid follower of podcasts and has been able to absorb that information and repeat that to me today, indicative of no deficit, or at most a minor deficit.”
In the body of the report the Medical Assessor said:
“His legal, insurance and other cases occupy considerable time and he says it is not uncommon for him when he looks at his Google calendar to find that he has got something to do for these each day of the week. He has undertaken a course since leaving work and utilises IT to schedule his tasks, and engage with lawyers – both here and overseas. He is teaching himself the piano through YouTube and follows podcasts and uses meditation apps.”
The Medical Assessor recorded his findings on the mental state examination:
“Mr Denshire was assessed in his bedroom. There were no signs of disarray and he was well kempt and presented. He engaged well and displayed none of his reported irritability. He was a focused, detailed and consistent historian, showing no problems with the pace of the assessment, clarifying matters, and explaining complex legal issues. He reports a dysphoric mood, tearful about his state and his loss of children most days, social avoidance, intolerance but now normal sleep. He reported no significant hyperarousal, hyperstartle, or intrusive re-experiencing phenomena day to day, although appears not to have these triggered.”
Mr Denshire said that there was “simply no evidence” that supported assessment in class 1. He submitted:
“There is no evidence of an ability to complete something like a TAFE course or university course within normal time limits. Learning to play the piano following a You Tube video at his own pace in his own time is not reflective of an ability to attend classes in a structured way, to write course papers to deadlines, attend tutorials, prepare for exams, write exams, and pass exams within normal time limits and pass the course within normal time limits. The ability to listen to podcasts and binge-watch Netflix and old car restoration shows does not qualify the Appellant for Class 1. Those activities more appropriately qualify him for Class 2 – mild impairment.
The MA relied on his interactions with the Appellant during the course of the interview which he said lasted for 80 minutes. It is respectfully submitted that this is not an appropriate measure of the Appellant’s level of functioning in this category because it is guided by the interviewer. It is structured by the interviewer and it concerns matters over which the Appellant ruminates. He is responding to questions put to him. It is not the same as the ability to function independently and attend and pass a TAFE course or university course.”
These submissions do not take account of the statement in Jenkins that the activities in the PIRS are examples only. There is more to the assessment than ticking off the examples in the table. Not everyone who is capable of undertaking a course seeks to do so. We note that Mr Denshire did undertake training to obtain his residential builder’s licence after the injury.
Table 11.5 assesses a worker’s ability to maintain concentration and to persist with cognitively demanding tasks. It also measures the pace of their cognitive processes. The assessment under this table differs from the other tables of the PIRS because the consultation allows the Medical Assessor to form their own opinion as to the worker’s ability to concentrate and respond during the examination, and their findings on the mental state examination are relevant. The examination will generally consist of open rather than closed questions. The consultation is, in itself, a cognitively demanding task. The Medical Examiner has an opportunity to observe the claimant’s ability to relate their story coherently, whether they have memory lapses or use memory aides, whether they can stay on topic or need questions restated or to be redirected. These elements form an important part of the mental state examination.
In the experience of the medical members of the Panel, a worker’s ability to engage in the interview process is a good reflection of their ability to concentrate and persist with tasks and of the pace of their cognition in other areas of their life. It is not sufficient by itself, but, taken with other aspects of the history provided by the claimant or in the Commission’s file, is an integral part of the assessment of concentration, persistence and pace.
Mr Denshire is teaching himself to play the piano from YouTube videos. Doing so involves motivation, concentration, application and discipline. It supports an assessment that he is functioning within the normal variation in the general population in this domain. Neither Mr Denshire’s psychologist nor the other examiners recorded significant deficits in his cognition. Dr Kumagaya’s assessment on 2 February 2024 in class 3, on the basis that Mr Denshire “struggles to maintain his attention and concentration,” is not consistent with his own mental state examination.
Dr Young assessed Mr Denshire in class 2 because Mr Denshire reported poor attention and concentration and that those difficulties fluctuated in severity.
The Medical Assessor was correct to assess Mr Denshire in class 1 based on the findings on the date of the examination.
For these reasons, we have determined that the MAC issued on 29 April 2025 should be confirmed.

[2025] NSWPICMP 678

5 September 2025