Duncombe v Riddle & Co Pty Ltd atf Highfield Family Trust t/as Eden Motel

DETERMINATION OF APPEAL PANEL
CITATION:	Duncombe v Riddle & Co Pty Ltd atf Highfield Family Trust t/as Eden Motel [2025] NSWPICMP 299
APPELLANT:	Emily Grace Duncombe
RESPONDENT:	Riddle & Co Pty Ltd atf Highfield Family Trust t/as Eden Motel
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	John Lam-Po-Tang
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	30 April 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); whether the deduction the Medical Assessor (MA) made under section 323(1) involved error; whether the MA had proper regard to the evidence when applying paragraph 11.10 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) so as to assess the appellant’s pre-injury impairment; whether the MA’s assessment of the appellant’s present impairment in social functioning involved error; Held – MA had proper regard to the evidence and obtained an accurate history by which he could rate the appellant’s pre-injury impairment; MA’s deduction under section 323(1) did not involve error; MA’s rating of the appellant’s impairment in social functioning did not involve error; MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 25 February 2025 Emily Grace Duncombe, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Graham Blom, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 28 January 2025.
The appellant relies on the following ground for appeal listed in s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), specifically 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

The appellant commenced employment with Riddle & Co Pty Ltd, the respondent, in June 2020. The respondent’s business was operating a motel known as Eden Motel. The appellant was employed as a house keeper. The appellant’s mother had worked for the respondent for two years prior to the appellant commencing her employment with the respondent and the appellant, prior to commencing her employment, assisted her mother when needed in an unpaid role.
At or around the time the appellant commenced her employment with the respondent, the respondent also engaged temporary managers. Due to the behaviour of those managers the appellant suffered a psychiatric injury.
At the request of her solicitors, consultant psychiatrist Dr Frank Chow examined the appellant on 26 February 2024. In a report dated 21 April 2024 relating to that examination, Dr Chow advised the appellant’s solicitors that he assessed the appellant had a permanent impairment in the order of 24% whole person impairment (WPI) due to her psychiatric illness which he diagnosed was chronic adjustment disorder. That assessment was based on the criteria of chapter 11 the Guidelines. Dr Chow noted that the appellant had a previous history of depression and anxiety and had engaged in deliberate self-harm and cutting in her teens. Dr Chow considered that a proportion of the appellant’s permanent impairment was due to a pre-existing condition and made a deduction of 10% on account of that so as to assess the degree of the appellant’s permanent impairment resulting from her injury as 22% WPI.
The Appeal Panel notes that Dr Chow provided no explanation for making a one-tenth deduction for the proportion of the appellant’s permanent impairment that was due to a pre-existing condition, other than the appellant had a history of depression, anxiety and had a diagnosis of autism and had previously in her teens engaged in self-harm.
On 24 April 2024 the appellant’s solicitors wrote to the respondent’s workers compensation insurer advising it that the appellant claimed compensation pursuant to s66 of the WorkersCompensation Act 1987 (the 1987 Act) for 22% WPI resulting from her psychiatric injury. The appellant’s solicitors provided the insurer with a copy of Dr Chow’s report of 21 April 2024.
To respond to that claim the insurer organised for the appellant to be examined by psychiatrist Dr Timothy Berry on 12 August 2024. In a report dated 13 August 2024 Dr Berry advised that he was “minded to agree with Dr Chow that the most appropriate diagnosis for Ms Duncombe is a chronic adjustment disorder as per DSM-V”. Dr Berry advised that her disorder appears “to have been triggered by her experience at work” although he also said “her work experience is not a complete answer to her psychiatric presentation”. Dr Berry had noted that the appellant had experienced difficulties with mental health since the age of 10.
Dr Berry further advised that he assessed the appellant’s whole permanent impairment was of the order of 8% of which he considered a proportion was due to her pre-existing psychiatric illness. He advised that a deduction was appropriate for that and said that “there is insufficient evidence on pre-injury functioning (as opposed to more general psychiatric history) from which to base a pre-injury PIRS”. Dr Berry advised that in that circumstance a one-tenth deduction was appropriate. The Appeal Panel notes that Dr Berry’s reference to PIRS is a reference to the Psychiatric Impairment Rating Scale that is detailed in paragraphs 11.11-11.20 of the Guidelines by reference to which a worker’s impairment resulting from a psychiatric injury is to be assessed.
Relying of Dr Berry’s report of 13 April 2024, the insurer wrote to the appellant on 10 October 2024 notifying her, pursuant to s 78 of the 1998 Act, that it denied liability to pay her compensation under s 66 of the 1987 Act. Its reason was that her permanent impairment from her injury did not exceed the threshold under s 65A(3) of the 1987 Act of at least 15%.
Thereupon the appellant initiated proceedings in the Personal Injury Commission (Commission) by lodging an Application to Resolve a Dispute dated 21 October 2024 (ARD). By that application she sought the Commission determine her claim for compensation for permanent impairment from her injury and also claims she had made for the respondent to make weekly payments of compensation to her for an incapacity for work from her injury and compensation for the cost of medical expenses she incurred in treating her injury. Following the respondent filing a reply to the ARD, the matter was referred to Member Glenn Capel who, on 21 November 2024 with the consent of the parties, determined that the proceedings in the Commission insofar as they related to the appellant’s claims for weekly compensation and compensation for medical expenses were discontinued. Member Capel noted that the respondent would reinstate weekly payments of compensation to the appellant from
4 January 2024 and would pay reasonably necessary medical expenses on production of accounts and receipts. Member Capel also directed the matter relating to the appellant’s claim for compensation for permanent impairment be remitted to the President of the Commission so that it could be referred to a Medical Assessor to assess the degree of the appellant’s permanent impairment from her injury.
A delegate of the President of the Commission then issued a referral to the Medical Assessor to assess various medical disputes relating to the appellant’s claim for compensation for permanent impairment, including the degree of her permanent impairment resulting from her injury and whether any proportion of her permanent impairment is due to a previous injury, pre-existing condition or abnormality and if so the extent of that proportion.
The Medical Assessor conducted his assessment 24 January 2025 and, as said, issued the MAC on 28 January 2025. The assessment was conducted by “telephone conference”. The Medical Assessor noted that his interview with the appellant lasted for 100 minutes and that the “quality of the streaming was good and she had no difficulty managing the app”. The Appeal Panel infers from that the Medical Assessor’s assessment was in fact conducted on an audio-visual platform, rather than a telephone conference. It is apparent from what the Medical Assessor recorded in the MAC from his findings on examination that he had vision of the appellant throughout the entirety of the 100 minutes upon which he conducted his assessment.
The Medical Assessor assessed the degree of the appellant’s permanent impairment from her injury by reference to the criteria of Chapter 11 of the Guidelines. He determined the extent of the appellant’s permanent impairment from her psychiatric condition by reference to the PIRS. He assessed the appellant’s overall permanent impairment was 17%, of which he considered a proportion, the equivalent of 7% WPI, was due to a pre-existing condition, which he deducted from the appellant’s overall permanent impairment such that he assessed the degree of the appellant’s permanent impairment from her injury is 10% WPI.
In her appeal against the medical assessment the appellant raises issues with respect to the Medical Assessor’s rating of her impairment in social functioning and the deduction the Medical Assessor made under s 323(1) of the 1998 Act for the proportion of her permanent impairment that was due to a pre-existing condition.
The Medical Assessor rated the appellant’s impairment in social functioning as Class 1, that is either no deficit in her function in social functioning or a minor deficit attributable to the normal variation of the population. The reasons the Medical Assessor provided in the PIRS rating form within the MAC for his rating were:
“Her relationship with Timothy and the children is very good she said. She said that Timothy is very understanding and supportive. She gets on well with her sister who was living with her. Her relationship with her mother is reasonable although there has (sic) been long-standing difficulties in this relationship.”
The Appeal Panel observes that Timothy is the appellant’s partner.
The Medical Assessor also recorded within the body of the MAC that the appellant lives with her partner and their three children, and also the appellant’s 14-year-old sister, who is her youngest sister. The Medical Assessor also noted that the appellant’s younger sister resides with the appellant and her partner because the appellant’s mother has mental health issues.
The Medical Assessor recorded that the appellant no longer has any friends and that her relationship with her last friend, with whom she used to go to a park, ended around 2020 and the end of that relationship was not related to her injury but was the result of her friend “running off with her step-father”. The Medical Assessor also recorded that the appellant had “limited friendships prior to this time and has not formed any since”.
The Medical Assessor noted that Dr Chow had rated the appellant’s impairment in social functioning as Class 2 and briefly detailed the basis on which Dr Chow did so. The Medical Assessor said that he believed his rating was more appropriate than Dr Chow’s rating for the reasons he had provided.
The psychiatric conditions that the Medical Assessor considered the appellant had at the time of her injury were Avoidant Personality Disorder and Persistent Depressive Disorder. His explanation of why he diagnosed these conditions was as follows:
“• Avoidant Personality Disorder – this diagnosis is made because of the presence of
long-standing difficulties in interpersonal contact leading to avoidance and unwillingness to be involved with people unless she is reasonably certain of acceptance. She is inhibited in interpersonal situations due to feelings of her inadequacy and she is reluctant to take personal risks or engage any new activities because of the risk of embarrassment or failure.
I acknowledge the limitations of this diagnosis as I have only reviewed Emily for 100 minutes, although I also spent considerable time reviewing the extensive medical documentation supplied. I note that she has previously been diagnosed with autism spectrum disorder.
• Persistent Depressive Disorder with episodic Major Depressive disorder- no episode of MDD at the time of this review. This diagnosis is made because of the presence of low mood on most days, although this fluctuates considerably, overeating, hypersomnia, low self-esteem, intermittent feelings of hopelessness and poor concentration. It is associated with episodic anxiety and associated avoidance although this tends to blend into her overall avoidant personality.”
Within the body of the MAC the Medical Assessor provided the following details relating to the appellant’s psychiatric history:
“Ms Duncombe has a long, complex and chronic psychiatric history. Her mother and father separated when she was about three years of age. At that time, she had one older brother. At around the age of three or four, Emily experienced sexual abuse by her mother’s stepfather. She said that she only became aware of this, during her
psychological treatment with Ms Tremblay, but then spoke to her mother about this. Her mother confirmed and elaborated on her memories.
Sometime after the separation, her mother began living with a new partner, Nathanial.
Initially, Emily said that there was (sic) no great difficulties in the relationship. However, after a few years, when she was around the age of eight or nine, she said that Nathanial began to be violent towards her mother and that the domestic violence became increasingly severe.
Emily related this to the death of her natural father, who died when she was about nine, although I was unclear as to how they were linked. As Emily reached adolescence, she found her living situation at home more and more unbearable. I should note that around the age of 15, according to her medical records, she was sexually assaulted by a 17-year old family friend and subsequent to this did not attend school very frequently (again according to the medical records), due to “social phobia”. She also went through a period of deliberate self-harm and during this time became increasingly avoidant. She
experienced what appears to have been depressive and anxiety-based symptoms and for a period of time undertook some psychological treatment.
She also appears to have had increasing conflict with her mother and stepfather and
eventually left home at about the age of 16. She was able to rent a unit (although in some of the notes it appears that she was staying in a hotel room) and she said that she attend (sic) a computer-based TAFE course – the course only required a couple of hours/week attendance. She said that the TAFE course that she was doing was “animal studies” to assist her to work eventually at a veterinarian practice. In late 2015 she began a relationship with a man, Mitchell, with whom she had a child, Logan, in 2016. After the birth of Logan, she said that Mitchell became increasingly abusive, clarifying that she did not mean that he was violent but that he was mentally, emotionally and financially abusive. I should note that in the medical records there is notation suggesting significant physical and sexual abuse but as I did not wish to upset Emily I did not raise this. I also note a comment in her GP notes dated 28 June 2016 – “Iona tells me that the place at Bemboka was an absolute mess when they were evicted about eight weeks ago. It was filthy, there were maggots. There was a bomb and pills laying around –? Old tabs of Emily’s SSRIs.” This related to the period when she was living with Mitchell, not long before eventually leaving.
Eventually she left Mitchell, in 2018, taking Logan with her and moving into her mother’s. She remained there until about 2021 living with her mother and her two younger sisters (she said that now they are 14 and 16 years of age). During this time, it is clear that her overall mood and level of functioning was (sic) significantly impacted. Her mother believed that Emily suffered from Asperger’s syndrome or other autistic spectrum disorder and encouraged her GP to refer her for a psychiatric assessment which was undertaken in 2019 by a psychiatrist, Dr Butterfield. The GP referral at this point notes that Emily was unable to leave the house unless someone went with her and that she was not working although she caught up with friends for “drinks” on Friday night. Emily confirmed that at this time she often drank excessively on these nights out. According to her mother, as noted in the letter, she stayed in bed for considerable periods of time. At this point she had been prescribed fluoxetine by her general practitioner. She was also referred to Lawson clinic (although appears not to have actually attended) for assistance with her own mood and for assistance in caring for her son. She previously had also had contact with Better Futures, a program to assist at risk mother’s (sic).
Between 2018 and 2020, when she began working, she continued to suffer from anxiety, depression and avoidance of social interaction, unless she had significant support. She said that she often missed showering and sometimes did not clean her teeth. While she had clearly improved during late 2019 early 2020, I could find no evidence from either her history or the documentation, of actual remission of her symptomatology. Her history suggests to me that she most likely has a Cluster C, personality disorder, with strong evidence of Avoidant Personality Disorder. It is likely that she has had long periods of what were most likely Persistent Depressive Disorder although at times this deteriorated into a Major Depressive Disorder.
I have raised the possibility of a diagnosis of Avoidant Personality Disorder as she certainly has many of the symptoms – she avoids occupational activities and generally avoids interpersonal contact due to fears of criticism disapproval. She is unwilling to be involved with people unless certain of acceptance. She is preoccupied with fears of receiving criticism or rejection in social situations. She is inhibited in new interpersonal relationships due to feelings of inadequacy and she is unusually reluctant to take personal risks or engage any new activities that may prove embarrassing. I have only reviewed Emily over one session, albeit one that lasted 100 minutes, and so obviously cannot be positive of the diagnosis although I believe that this much more clearly fits her symptomatology and her presentation today than the previous diagnosis of ASD which was also disputed by her psychologist Ms Tremblay.”
Within the part of the MAC that requires a Medical Assessor to provide a summary of a worker’s injury and diagnoses of the injury, the Medical Assessor detailed that the appellant had a very long history of chronic and significant psychiatric disorder and that whilst her symptoms at the time of injury had improved sufficiently for her to engage in her employment with the respondent, her symptoms had not reached full remission. Indeed, the Medical Assessor noted that “it is not clear that she had had complete remission from her symptoms at any time, for several years at least, prior to her injury”.

Within part 11b of the MAC the Medical Assessor provided the following detailed explanation for making a deduction of 7% WPI for the proportion of the appellant’s permanent impairment he assessed she had from her injury that was due to her pre-existing condition:
“She has a long history of avoiding most social contact and often needing support when engaged in social contact. She has experienced significant depression, which has fluctuated in intensity, from about the age of 15. At times she was able to function better than others but from her description and the clinical notes, it would appear that for much of this time she had some form of depressive or anxiety symptomatology.
This is complicated and exacerbated by long-standing avoidant behaviour and general fear of social interaction, certainly from around the age of 15 or 16. These symptoms clearly deteriorated after her relationship with Mitchell ended due to abuse. At this point she was left with a young child and no manner of supporting herself or him. She returned to her mother’s but at this point was clearly very depressed, markedly avoidant and significantly anxious. This gradually improved over the following three years although there was no clear remission in her symptoms.
As a result of her pre-existing disorder she was experiencing moderate impairment around the time, that she started work, although it is likely that starting work in and of itself assisted her function. I have undertaken an assessment of her pre-existing impairment.
Self Care and Personal Hygiene: she occasionally failed to shower or clean her teeth. She cooked on occasions but very often depended on her mother for cooking. She tended to eat considerable amounts of junk food and had gained significant weight over several years. This is mild impairment – class 2.
Social and Recreational activities. She used to take Logan to the park where she met her friend (a woman about 10 years older than herself) and they would spend social time together while the children played. Beside this friend however she had no other friendships and denied having any hobbies or interests. This is mild impairment – class 2.
Travel. She had obtained her learners permit and within the legal boundaries could drive in the local area. She did not like driving outside of the local area due to anxiety. She did not travel outside of the Bega region due to anxiety even with a support person she said. This is mild impairment – class 2.
Social Functioning. Her relationship with her mother was strained and tense in part due to her own difficulties complicated by her mother’s mental health difficulties. She generally struggled with forming relationships and had no partner at that time. She needed assistance and caring for her son. This is mild impairment – class 2.
Concentration, Persistence and Pace. Emily said that she always had some difficulty with her concentration and persistence, for example she said that she had never been able to read more than a few pages at a time. She said that this was not due to difficulties in reading but difficulties in persisting and focusing on a book. She could however watch a movie throughout. She had difficulties maintaining persistence and when she undertook tasks she tended to be slower than normal. This is mild impairment – class 2.
Employability. She had never worked in any paid position prior to her employment at Eden Motel. She had attempted a course when she was about 15 or 16 but had not finished it due to life events. The course itself was computer based and only a couple of hours/week. She had worked with her mother support prior to starting at Eden Motel 2 to 3 hours/day 4 to 5 days/week. This is moderate impairment – class 3.
Ms Duncombe therefore has an aggregate score of 13 and a median class of 2.
This results in a pre-existing whole person impairment of 7%.”
The Medical Assessor noted that Dr Chow had made a “statutory deduction” of 10% of the permanent impairment he assessed the appellant had, (which the Appeal Panel notes amounts to 2% WPI when rounded) which the Medical Assessor believed was an error because he was of the view, based on the documentation he had reviewed and his interview with the appellant, he could rate her pre-existing function by reference to PIRS which he considered was “appropriate and reflective of the intent of the Guidelines”.
The Medical Assessor also noted that Dr Berry had made “the statutory deduction of 10%” and he again repeated that he believed “a pre-existing PIRS rating is more appropriate” in terms of assessing the proportion of the appellant’s permanent impairment that was due to her pre-existing condition.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination. This is because the Appeal Panel came to the view that the appellant had not established the grounds for appeal on which she relied, and consequently the Appeal Panel neither has power nor reason to examine the appellant.[1]
[1] New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [33]; Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130]; Saveski v Brunjev Pty Ltd [2025] NSWSC 157 at [66].
During its preliminary review of the medical assessment the Appeal Panel also considered whether it should receive into evidence a statement the appellant signed on
25 February 2025.
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.
However, even though the fresh evidence may meet the threshold of s 328(3), the Appeal Panel is not required to accept the evidence if it is irrelevant or if it does not have “substantial prima facieprobative value, in terms of its particularity, plausibility and/or independent support”.[2]
[2]Lukacevic v Coates Hire Operations Pty Ltd [2011] NSWCA 112 at [78] and [102].
In her statement of 25 February 2025, the appellant identified herself within paragraphs 1-3. At paragraph 4 she details that she attended the appointment with the Medical Assessor on 24 January 2025. Within paragraph 5 she said she had difficulty communicating with the Medical Assessor and had difficulty understanding his questions and got confused. She suggested that the Medical Assessor appeared to become frustrated and rolled his eyes at her.
At paragraph 6 of her statement she said that the Medical Assessor misunderstood her and she opined that the Medical Assessor made errors in his assessment of her pre-existing impairment and her current social functioning.
At paragraph 7 of her statement, she detailed circumstances that had occurred in her private life between 2015 and January 2018. At paragraph 8 she said that prior to commencing her employment with the respondent she had recovered from the effects of an earlier abusive relationship and, although she still had some anxiety, she said that she still had a social life and hobbies and took care of herself, as she had detailed in an earlier statement she signed on 16 October 2024.
At paragraph 9 she provided details of her capacity in the several PIRS categories as of the time she commenced working for the respondent.
At paragraph 10 she said that she had lost friends since her injury because she had stopped contacting them, which she said she had detailed in her statement of 16 October 2024.
The content of paragraphs 1-4 of her statement are not relevant, and hence the Appeal Panel shall not receive that evidence.
The Medical Assessor in the MAC did not indicate experiencing any difficulty in communicating with the appellant. Indeed, he noted in the MAC that the appellant had no difficulty in maintaining focus and persisting throughout the interview.
The Medical Assessor is a specialist psychiatrist and has expertise in conducting a medical examination of a psychiatrically unwell person. It is clear to the Appeal Panel, from the content of the MAC, that the Medical Assessor was able to compose a detailed history relating to the appellant based on the interview he had with the appellant and the documentation that was provided to him. The appellant is not a medical expert and is not trained in how to undertake an examination or an assessment of impairment. Bearing in mind the expertise of the Medical Assessor in conducting examinations and assessments and the appellant’s lack of it, the Appeal Panel’s view is that the content of the appellant’s statement within paragraphs 5-6 lacks particularity and also plausibility to be of substantial prima facia probative value. The Appeal Panel does not accept this evidence.
Insofar as the appellant details within paragraphs 7 to 10 of her statement matters that she had earlier detailed in her statement of 16 October 2024 or additional matters regarding her function as at the time she commenced employment with the respondent, it is not fresh evidence so as to meet the threshold of s 328(3) for the Appeal Panel to receive that into evidence.
Accordingly, the Appeal Panel rejects paragraphs 7-10 of her statement on the basis it does not fulfil the requirement of s328(3) for it to be introduced as fresh evidence.

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.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the evidence of the appellant in her statement of
16 October 2024 is inconsistent with the PIRS assessment the Medical Assessor conducted of her impairment from her pre-existing condition. The appellant noted that within that statement she said that she had been taking care of herself prior to her injury and that she had more than one friend and that she had hobbies prior to her injury. The appellant also noted that her general practitioner had recorded before her injury that she “caught up with friends for ‘drinks’ on Friday night”. The Appeal Panel notes that her general practitioner provided that history in a letter of 15 March 2019 addressed to the appellant’s then psychiatrist.
The appellant submitted that the Medical Assessor did not take proper account of her evidence regarding her pre-injury friendships and recreational activities when assessing her impairment in social functioning. The appellant further submitted that the Medical Assessor did not take proper account of her ability to focus on things of interest to her such as her craft, which she had detailed in her statement. The appellant further submitted that the Medical Assessor, when rating her impairment in employability, did not have regard to her working before her injury in a fairy floss and party business that the family conducted.
The appellant submitted that the Medical Assessor erred by rating her impairment as Class 1 in social functioning because her evidence was that she had lost all pre-injury friendships.
In reply, the respondent submitted that the Medical Assessor’s assessment of the appellant’s pre-injury impairment is accurate and based on the available medical evidence. The respondent submitted that the appellant’s view of the Medical Assessor’s rating of her pre-injury impairment amounts to no more than a difference of opinion. The respondent submitted that the appellant’s evidence that she was taking care of herself prior to her injury is in “contrast” with what her general practitioner detailed in a letter her general practitioner wrote on 15 March 2019, wherein her general practitioner described the appellant doing nothing during the days and the appellant staying in bed all day if her mother did not get her up.
The respondent submitted that the number of friends the appellant may have had prior to her injury would not affect the Medical Assessor’s rating of the appellant’s impairment in social functioning before her injury, noting the Medical Assessor’s explanation for his rating.
The respondent submitted the history the Medical Assessor obtained relating to the appellant’s hobbies and interests and what the appellant reported regarding her difficulty with concentration is consistent with the Medical Assessor rating her as having a Class 2 impairment in concentration, persistence and pace (CPP) pre-injury.
The respondent submitted that the history the Medical Assessor obtained regarding the appellant’s employment before injury was that the appellant had never worked in any paid position. The respondent submitted that that was not inconsistent with what the appellant had said in her statement. The respondent further submitted that, in any event, that issue had no bearing on the Medical Assessor’s rating of the appellant’s impairment in employability as Class 3.
With respect to the Medical Assessor’s rating of the appellant’s current impairment in social functioning, the respondent submitted that the appellant confirmed in paragraph 15 of her statement that she had only one good friend whom she lost for reasons unrelated to her injury and that she lost all of her work friends because she did not keep in touch with anyone. The respondent referred to the appellant having social phobia. The respondent also referred to Dr Berry’s report of 13 August 2024 wherein he noted the appellant’s friendship with her one friend came to an end for reasons unrelated to the appellant’s mental health.
The respondent submitted that the Medical Assessor’s rating of the appellant’s impairment as Class 1 in social functioning is consistent with the descriptors in the Guidelines.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.
Section 323(1) of the 1998 Act requires a Medical Assessor when assessing the degree of a worker’s permanent impairment from an injury to make a deduction for any proportion of that impairment that is due to a previous injury, pre-existing condition of abnormality. Section 323(2) of the 1998 Act requires the Medical Assessor to assume that the deductible proportion is to be 10% of the impairment if it is difficult or costly to determine what the deductible proportion is, provided making that assumption is not at odds with the available evidence. Section 323(4) of the 1998 Act permits the State Insurance Regulatory Authority to issue guidelines regarding how a Medical Assessor is to determine the deduction to be made under s 323.
Paragraph 11.10 of the Guidelines relates to the method by which a Medical Assessor is to determine the deduction to be made under s 323(1) in the circumstance where the permanent impairment a worker has results from a psychiatric injury. It reads as follows:
“To measure the impairment caused by a work-related injury or incident, the psychiatrist must measure the proportion of WPI due to a pre-existing condition. Pre-existing impairment is calculated using the same method for calculating current impairment level. The assessing psychiatrist uses all available information to rate the injured worker’s pre-injury level of functioning in each of the areas of function. The percentage impairment is calculated using the aggregate score and median class score using the conversion table below. The injured worker’s current level of WPI% is then assessed, and the pre-existing WPI% is subtracted from their current level, to obtain the percentage of permanent impairment directly attributable to the work-related injury. If the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI.”
That paragraph is valid, and must be applied by a Medical Assessor[3]. Neither party suggested otherwise in their respective submissions.
[3] Matheson v Baptist Care NSW & ACT [2025] NSWSC 213 at [22]-[29], [35].
Further, it is not in issue in the appellant’s appeal against the medical assessment that she had a pre-existing condition that contributed a proportion of her permanent impairment from her injury. What is in issue is whether at the time she suffered her injury, which was between June 2020 and August 2020, the Medical Assessor correctly rated her impairment by reference to the criteria of PIRS.
The Appeal Panel discerns no error in the Medical Assessor’s rating of the appellant’s impairment from her pre-existing condition, and consequently the Appeal Panel does not accept the appellant’s submission that the Medical Assessor made an error in his rating of the proportion of her permanent impairment from her injury.
The Medical Assessor detailed a very thorough and relevant clinical history regarding the appellant’s psychiatric illness. It is apparent from the MAC that the Medical Assessor composed that history having regard both to the information he elicited from the appellant during the examination and information within the documentary evidence that was before him. Indeed, the Medical Assessor said that he had spent considerable time reviewing the extensive medical documentation that had been supplied and also noted that his interview with the appellant lasted 100 minutes.
An assessment of impairment by reference to PIRS requires a Medical Assessor to make an evaluative judgment.[4] In making that evaluative judgment the Medical Assessor is, essentially, required to apply his or her clinical skill to determine, in accordance with the directions contained within paragraph 11.10 of the Guidelines, how seriously impaired a worker’s function was at a prior point in time. That judgement will be based on the history the Medical Assessor has obtained and based his or her findings made of the worker during assessment. An Appeal Panel should only find error in a Medical Assessor’s rating of a worker’s impairment as at that time if the Medical Assessor’s rating was glaringly improbable, or if the Medical Assessor was unaware of a significant factual matter, or it can be demonstrated the Medical Assessor was affected by clear misunderstanding, or the Medical Assessor’s reasoning process was in error.[5]
[4] Cheers v Mid Coast Council [2024] NSWSC 1553 (Cheers) at [52]
[5] Ferguson v State of NSW [2017] NSWSC 887 at [23]-[24]; Cheers at [30]-[31]
As already indicated, the Appeal Panel is of the view that the Medical Assessor had regard to the appellant’s statement of 16 October 2024 when composing the clinical history that he considered necessary for him to assess the appellant’s impairment from her pre-existing condition. He also had regard to the content of the voluminous documents before him.
The Medical Assessor’s rating that the appellant’s impairment in self-care and personal hygiene as at the date she commenced her employment was mild is not glaringly improbable. There was no significant factual matter of which he was unaware. It is not apparent that his assessment was based on any misunderstanding. His rating is supported by the reasons he provided.
The same applies for the Medical Assessor’s rating of the appellant’s impairment, as at the date of her injury, in social and recreational activities. The appellant said in her statement that she went canoeing with her family about once a month and she had a good circle of friends and they would go to each other’s houses and go to activities such as a dance and Christmas parties and birthday parties. The history the Medical Assessor obtained was that as of the date of the appellant’s injury she then had no friendships other than one and that she then had no hobbies or interests. As indicated, the Appeal Panel is satisfied that the Medical Assessor was cognisant of the content of the appellant’s statement when composing the relevant clinical history for the appellant he considered was necessary to rate her impairment. Further, the history upon which the Medical Assessor based his rating of the appellant’s impairment in social and recreational activities as at the date of her injury is not inconsistent with the content of the appellant’s general practitioner’s letter of 15 March 2019, noting that that letter was written more than a year prior to the appellant commencing employment with the respondent.

Again, with respect to the Medical Assessor’s rating of the appellant’s impairment in social and recreational activities as at the date of her injury, the Appeal Panel is not satisfied that it is glaringly improbable, or that he was unaware of some significant factual matter, or that he misunderstood a relevant matter or that his reasoning was flawed. There is consequently no basis upon which the Appeal Panel can find error.
The Medical Assessor also detailed in the MAC that as at the date of the appellant’s injury the appellant had a long history of avoiding social contact and needing support when engaged in social contact.
With respect to the Medical Assessor’s rating of the appellant’s impairment in travel as at the date of her injury the Appeal Panel again considers the Medical Assessor did not make an error. The appellant was at that time unable to travel outside of her local region without a support person because of anxiety. She was driving within her local area. That represents, in the Appeal Panel’s view, a Class 2 impairment.
The Appeal Panel is also of the view that the Medical Assessor’s rating of Class 2 of the appellant’s impairment in social functioning as at the date of her injury is correct. Contrary to what the appellant has submitted, the Appeal Panel is satisfied the Medical Assessor was aware of what the appellant had said in her statement. The Medical Assessor was aware that the appellant had previously caught up with friends for drinks on Friday nights. He was aware that as at the time of injury she had one friend only and had limited friendships prior to that and had not formed any friendships since her injury. The Medical Assessor noted that her friendship with her single friend came to an end due to matters unrelated to her injury. Again, the Medical Assessor’s rating of her impairment is not glaringly improbable nor can it be demonstrated that he was unaware of a significant factual matter or misunderstood a relevant matter. His rating is supported by the reasons he has provided.
With respect to the Medical Assessor’s rating of the appellant’s impairment in CPP, in the Appeal Panel’s view the Medical Assessor’s rating of the appellant’s impairment as at the date of injury as Class 2 is not glaringly improbable. Based on the evidence, there is no significant factual matter of which he was unaware. It is not apparent that he misunderstood any matter. His rating is supported by the reasons he provided.
The appellant in her statements said she enjoyed craft such as knitting and baking. In the Appeal Panel’s view the appellant’s engagement in that activity as at the date of her injury would not upset the Medical Assessor’s rating of a Class 2 impairment, noting the matters the Medical Assessor detailed in the MAC to support his assessment that she had a Class 2 impairment, specifically that the appellant always had difficulties with concentration and persistence.
The Appeal Panel also considers the Medical Assessor’s rating of Class 3 of the appellant’s impairment in employability as at the date of her injury does not involve error. Relevant to the Medical Assessor’s rating was that preceding the appellant suffering her injury, she was working on an unpaid basis at the Eden Motel with the support of her mother for two to three hours a day four to five days a week. Essentially the Medical Assessor found that the appellant was then able to work in a supportive environment or supported employment. In the Appeal Panel’s view the Medical Assessor’s rating of the appellant’s impairment as Class 3 is not glaringly improbable nor did it ignore any materially significant matter nor was it based on a misunderstanding of a material matter. The Medical Assessor’s explanations support his rating.
The Appeal Panel also does not accept the appellant’s submission that the Medical Assessor’s rating of her current impairment in social functioning as Class 1 involves error. As noted above, the history the Medical Assessor obtained is that as at the date of her injury she had only one friend, and the end of this friendship came to pass for reasons unrelated to her injury.
The history the Medical Assessor set out in the MAC reveals that the appellant’s capacity in social functioning now is better than what it was as at the date she suffered injury. After the injury, she was able to form an intimate relationship. She has been able to maintain a relationship with her current partner and her children and with her sister, all of whom reside with her. She has a good relationship with her mother. The history that the Medical Assessor detailed revealed that the only friendship she had at the time of her injury was lost due to her injury, but for other reasons.
For these reasons, the Appeal Panel has determined that the MAC issued on 28 January 2025 should be confirmed.

[2025] NSWPICMP 299

30 April 2025