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

DETERMINATION OF APPEAL PANEL
CITATION:	Eddy v State of New South Wales (NSW Police Force) [2025] NSWPICMP 37
APPELLANT:	Glenn Thomas Eddy
RESPONDENT:	State of New South Wales (NSW Police Force)
APPEAL PANEL
MEMBER:	Gaius Whiffin
MEDICAL ASSESSOR:	John Lam-Po-Tang
MEDICAL ASSESSOR:	Douglas Andrews
DATE OF DECISION:	17 January 2025
CATCHWORDS:	WORKERS COMPENSATION - Appeal against Medical Assessor’s (MA) assessment of impairment in relation to psychiatric and psychological disorders, on the basis that the MA erred in her assessment of the appellant with regard to the psychiatric impairment rating scale (PIRS) categories of social and recreational activities, travel, social functioning, concentration persistence and pace, and employability; Glenn William Parker v Select Civil Pty Limited, Ferguson v State of New South Wales, Campbelltown City Council v Vegan, New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales, Queanbeyan Racing Club Ltd v Burton, Jenkins v Ambulance Service of New South Wales, and Botha v Secretary, NSW Department of Customer Service considered; Held – the Appeal Panel finds error in relation to the assessments made with regard to the PIRS categories of concentration persistence and pace, and employability, but no error in relation to the assessments made with regard to the PIRS categories of social and recreational activities, travel, and social functioning; Medical Assessment Certificate revoked as a result, and a new Medical Assessment Certificate issued.

BACKGROUND TO THE APPLICATION TO APPEAL

On 19 September 2024, Glenn Thomas Eddy (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor (the Appeal). The medical dispute was assessed by Medical Assessor Surabhi Verma (the Medical Assessor), who issued a Medical Assessment Certificate (MAC) on 27 August 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The President’s delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has therefore been convened and it has conducted a review of the original medical assessment but limited to the grounds of appeal upon which the Appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 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

The appellant was employed as a police officer by the New South Wales Police Force (the respondent) from when he attested in 1999 until he was medically discharged from the respondent’s employment in around September 2023. He dealt with numerous traumatic events during the course of his employment, including child abuse, motor vehicle and other accidents, suicides and other deaths, fires, as well as assaults, stabbings, and other acts of violence. He developed a psychological injury.
The appellant claimed compensation from the respondent in relation to the injury, and the respondent accepted that it was liable to pay compensation in this regard, in accordance with the provisions in the Workers Compensation Act 1987 (the 1987 Act). It has therefore variously paid him weekly benefits compensation, as well as his expenses in accordance with s 60 of the 1987 Act.
The appellant then claimed lump sum compensation from the respondent pursuant to s 66 of the 1987 Act. He made his formal claim by letter dated 15 November 2023 and relied upon an opinion from Dr Chivaurah, who assessed him with 19% permanent impairment from the injury.
The respondent arranged for Dr Clarke to assess the appellant, and based upon that doctor’s assessment, it issued a notice pursuant to s 78 of the 1998 Act dated 22 May 2024, in which it denied liability for the appellant’s claim pursuant to s 66 of the 1987 Act on the basis that
Dr Clarke had only assessed the appellant as having 5% permanent impairment from the injury.
By an Application to Resolve a Dispute (ARD) dated 12 July 2024, and lodged with the Personal Injury Commission (Commission), the appellant claimed inter alia compensation pursuant to s 66 of the 1987 Act.
As the respondent had accepted liability for the appellant’s injury, the Commission referred the medical dispute regarding the extent of the appellant’s permanent impairment directly to the Medical Assessor. The referral in this regard was dated 6 August 2024.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with 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 because it possessed sufficient evidence within the documentary evidence before it, in order to be able to determine the Appeal.
Neither party sought to rely upon any additional evidence in the Appeal.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination:
(a) the ARD and its attachments, and
(b) the respondent’s reply (Reply) and its attachments.

Medical Assessment Certificate

The parts of the MAC that are relevant to the Appeal are set out, where relevant, in the body of this decision. It is unnecessary however to refer to the MAC in more detail, given the limited nature of the Appeal.
The Medical Assessor takes a history of the onset of, causes of, and treatment for the appellant’s psychological injury that is not disputed by the parties. She specifically refers to considering the medical evidence in the ARD and the Reply. She outlines the appellant’s present symptoms resulting from the injury, as reported to her by him. She also details the symptoms with specific reference to the psychiatric impairment rating scale (PIRS) categories outlined in the Guidelines at paragraphs 11.11-11.12, and at Tables 11.1-11.6 (the PIRS categories).
On examination of the appellant, the Medical Assessor finds:
“He got teary once when talking about his symptoms and how they started. He was however, towards the end, he was able to give a good and clear account of his symptoms and difficulties. He reported his mood as fluctuating, and his affect was slightly anxious, which he attributed to today's examination. His speech was spontaneous and normal in volume and tone. His thoughts were logical and goal oriented. He currently reports ongoing negative ruminations, nightmares, flashbacks, fluctuating mood, insomnia and hypervigilance…There was no evidence of any manic, psychotic or any perceptual abnormalities. He had insight into his condition and his judgment was intact. He was able to focus and pay attention during the assessment and was not distracted. He was oriented to time, place and person.”
The Medical Assessor also notes that during her assessment of the appellant, he was not distracted, he answered questions in great detail, and he was “able to focus and pay attention for the entire hour”.
The Medical Assessor diagnoses the appellant with post-traumatic stress disorder and alcohol use disorder. She opines that his injury has reached maximum medical improvement, and she proceeds to assess his permanent impairment pursuant to the PIRS categories.
In relation to the PIRS category of ‘self-care and personal hygiene’, she assesses a class 1 impairment. In relation to the PIRS category of ‘social and recreational activities’, she assesses a class 2 impairment. In relation to the PIRS category of ‘travel’, she assesses a class 1 impairment. In relation to the PIRS category of ‘social functioning’, she assesses a class 2 impairment. In relation to the PIRS category of ‘concentration, persistence and pace’, she assesses a class 2 impairment. In relation to the PIRS category of ‘employability’, she assesses a class 4 impairment. She therefore finds the median class impairment to be 2 and the aggregate impairment to be 12, resulting in a final permanent impairment assessment of 6%.

SUBMISSIONS

Both parties have made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor:
“assessed WPI on the basis of incorrect criteria and the MAC contains a demonstrable error in respect of the assessment of the PIRS categories of Social & Recreational Activities, Travel, Social Functioning, Concentration, Persistence & Pace and Employability.”
The Medical Assessor placed too much reliance upon Dr Clarke’s reports (found at pages 218, 233, and 247 of the Reply) “as a source of truth”, and did not address in any detail the appellant’s statement dated 10 July 2024 (found at page 1 of the ARD).
The appellant submits that in relation to the PIRS category of ‘social and recreational activities’, a class 3 impairment is appropriate; in relation to the PIRS category of ‘travel’, a class 2 impairment is appropriate; in relation to the PIRS category of ‘social functioning’, a class 3 impairment is appropriate; in relation to the PIRS category of ‘concentration, persistence and pace’, a class 3 impairment is appropriate, and in relation to the PIRS category of ‘employability’, a class 5 impairment is appropriate.
In reply, the respondent submits that the Medical Assessor correctly assessed the appellant in accordance with the PIRS categories, and the MAC should therefore be confirmed by the Appeal Panel. The assessments were reasonably available to her on the evidence, and the appellant’s submissions refer to “a difference of opinion on a subject about which reasonable minds may differ”, which is insufficient to establish error on the part of the Medical Assessor – in accordance with Glenn William Parker v Select Civil Pty Limited [2018] NSWSC 140 (Parker) and Ferguson v State of New South Wales [2017] NSWSC 887 (Ferguson). The respondent also quotes the following from Ferguson (at [23]):
“...the pre-eminence of the clinical observations cannot be understated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face. ...”.

FINDINGS AND REASONS

In Campbelltown City Council v Vegan [2006] NSWCA 284, the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact, it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The 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, that is, those errors identified by a party in its submissions – see New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792.
The Appeal Panel in this regard has to ensure that it does not disturb any unchallenged findings in the MAC. In Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304, Basten JA stated (at [35]):
“The Appeal Panel was correct in the present case to address the subject matter of the ground of appeal, set aside the medical assessment certificate and issue another certificate including the amended assessments and [emphasis in original] the original unchallenged assessment. In doing so it neither purported to reassess the unchallenged finding nor to adopt the medical assessor’s reasoning with respect to that finding; neither course was part of its statutory function.”
The appellant has not raised any error with the Medical Assessor’s assessment of him in accordance with the PIRS category of ‘self-care and personal hygiene’. That assessment of a class 1 impairment is therefore unchallenged, and will not be disturbed.
In relation to the PIRS category of ‘social and recreational activities’, the Guidelines describe the following in Table 11.2:
“Class 2 - Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3 - Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.”
Paragraph 11.12 of the Guidelines makes it clear that the descriptors in Tables 11.1-11.6 are examples only. This position is also made clear in the decision of Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633 (Jenkins), in which Garling SCJ helpfully summarised (at [52-57]):
“Chapter 1 of the WorkCover Guides is a general description to those in the position of an AMS as to how to apply the Guides. Of particular importance in clause 1.5(a) is the statement which notes that assessing permanent impairment involves clinical assessment on the day of assessment.
A clinical assessment of a claimant is one, but not the only, method of accumulating information about a claimant. Clearly, other medical reports about the claimant’s condition, histories obtained from independent observers such as members of the claimant’s family, and histories obtained from the claimant themselves, either in the past, as contained in medical reports, or in the process of a consultation, are all matters which are legitimately able to be taken into account.
Clause 1.13 of the WorkCover Guides cannot reasonably be read in the way contended for by the plaintiff. A reasonable reading of that clause underlines the usual process engaged in by a medical expert when assessing the presenting condition, the diagnosis, and the severity of the condition which is being presented. Clause 1.13 requires medical specialists to exercise their clinical judgment. Whilst it is correct to say that the words in the following sentence in clause 1.13 require the medical expert to determine a degree of permanent impairment ‘... using the tables, graphs and methodology given ...’ [emphasis in original], that does not mean that clinical judgment or assessment has no role to play in that process of determination of the degree of permanent impairment.
Particularly with the assessment of psychiatric or psychological impairment, so much, in my view, is self-evident. There is no objective method by which the extent of a psychiatric impairment can be measured, unlike the objective measurement of a restriction on a degree of movement in an upper limb, by way of example, or an objective, and measurable, assessment of the extent of loss of hearing or eyesight.
In assessing the extent of a psychiatric impairment, the WorkCover Guides require the AMS to determine from all of the material at their disposal, whether, in respect of each functional area, the degree of impairment fits into one of the classes which range from no impairment to total impairment.
The submission of the plaintiff that, in assigning a class of impairment to each scale, the AMS is restricted only to the examples of activities listed in the tables or, alternatively, to those activities as a minimum, cannot be accepted.”
In Jenkins, Garling SCJ emphasises the importance of the clinical judgement of the Medical Assessor in applying the PIRS categories, and concludes at [73]:
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
In accordance with Jenkins, as well as Parker and Ferguson, for the appellant to succeed in showing that the Medical Assessor erred in her assessment of him in relation to any of the PIRS categories, he needs to show that a relevant assessment did not involve merely a disagreement or a difference in opinion.
In relation to the PIRS category of ‘social and recreational activities’, Stern SCJ recently provided guidance as to the activities which needed to be considered by a Medical Assessor in Botha v Secretary, NSW Department of Customer Service [2024] NSWSC 781 (Botha), at [68-69]:
“As to context, it is clear that the aim of table 11.2 is to provide a tool for trained psychiatrists to assess a worker’s impairment as regards social and recreational activities. Whether particular activities should be assessed as involving no, mild, moderate, or more severe impairment is a matter of judgment and degree for such a psychiatrist, having regard both to their training and to the examples in the Guidelines. It is unlikely in those circumstances that the Guidelines were intended to be proscriptive as to whether activities within or outside of a worker’s home could be taken into account in making such assessments. Further, there are separate PIRS in the Guidelines for assessing impairment in relation to travel and social functioning. This suggests that the intention in table 11.2 is not to provide a tool for assessing a worker’s ability to travel outside the home, nor for assessing their ability to sustain friendships. Rather, the intention in table 11.2 is to provide a tool for assessing the worker’s ability to engage in activities that are properly characterised as social or recreational. There is no good reason why such activities would have to occur outside of a worker’s home. Indeed, the artificiality of the plaintiff’s proposed construction is apparent from her contention that a face to face catch up with a friend or friends can be a social and recreational activity if it occurs at the friend’s house but must be ignored when making an assessment using the Social and Recreational PIRS if the friend or friends come to visit the plaintiff. Similarly, it is wholly artificial to suggest, as the plaintiff did, that the plaintiff hosting a birthday party must be ignored when assessing impairment on the Social and Recreational PIRS.
Considerations of purpose point in the same direction. Given that the purpose of the Social and Recreational PIRS is as a tool for trained psychiatrists to assess the functional impact of an injury on a worker’s social and recreational activities, there is no sound reason why a distinction should be drawn between activities within or outside of the home. It is the social and recreational character of the activities that is relevant.”
The details obtained by the Medical Assessor were that the appellant had ceased playing cricket, playing football, umpiring football, coaching football teams, being on a football club committee, and volunteering as a surf lifesaver. He still went to the gym a couple of times per week. He was socially reclusive and avoided people, going for walks in the bush in order to avoid people. He had tea with his wife every few months and saw his brother at least once a month. His mother often visited him also. He had a friend from Melbourne who visited him a couple of times per year, but he no longer travelled to Melbourne to visit that friend. He also had a local friend who visited him every three to four months, and whom he had visited on a few occasions. The Medical Assessor records that the appellant “has been able to go out without a support person and has been involved when his friend from Melbourne came over to meet him”.

The Medical Assessor also notes that the appellant had travelled to Lombok for a holiday with his family, and had visited his daughter on the Gold Coast with his wife.
The details recorded by the Medical Assessor are not inconsistent with the details found in the appellant’s 10 July 2024 statement. The statement does however further detail:
(a)    the appellant’s “busy social life” prior to his injury - especially in attending social functions with his then police colleagues, whom he no longer sees;
(b)    he says that prior to his injury, he was known as “the life of the party” and his company and advice would be sought by others – however, he now finds “it hard to get enjoyment out of anything”;
(c)    he says that he currently has some social contact with fellow ex-colleagues of his who have also sustained psychological injuries;
(d)    he is able to cook a few nights per week but “nothing flash”;
(e)    the gym that he goes to has a small clientele, and he is therefore able to avoid social interaction there;
(f)    he hardly ever attends football matches any more, “and when I do I will just sit in my car and not mix”;
(g)    he refers to “tinkering in the shed”, but regards it as “really just wasting time or killing time”, and
(h)    his holiday to Lombok was quite stressful for him, and he was accompanied by his wife and brother at all times.
The Appeal Panel accepts that the appellant’s social and recreational activities have been affected by his psychological injury. It finds no error however in relation to the Medical Assessor’s assessment of a mild impairment (class 2) in accordance with the PIRS categories. The appellant regularly attends the gym, and he still has relationships with his mother, brother and at least two close friends. He is able to go on holidays, although generally with support. He does not involve himself in social functions and he has lost interest in his previous sporting pursuits, but he walks in the bush and attends to the potentially recreational activities of cooking and “tinkering in the shed” at his home.
Many of the appellant’s social activities may occur within his house, but they are still social activities in accordance with Botha. Also, many of his recreational activities (such as walking in the bush and attending the gym) may not involve social contact, but they are still recreational activities.
Further, in relation to the descriptors in Table 11.2 of the Guidelines, the Appeal Panel (while noting that the descriptors are not exhaustive) does not consider the appellant’s impairment to be moderate (class 3) in accordance with those descriptors, as:
(a)    it does not see the evidence as showing that the appellant rarely [emphasis added] engages in social and recreational activities;
(b)    there is not sufficient evidence of prompting which is needed for the appellant to engage in the social and recreational activities that he engages in;
(c)    there is evidence that the appellant needs a support person to engage in some social and recreational activities (such as holidaying) but there is no evidence that he needs a support person to engage in other social activities (such as attending the gym), and
(d)    there is not sufficient evidence that the appellant is not actively involved in his social and recreational activities, when he undertakes them.
In all the circumstances, in accordance with Jenkins, Parker and Ferguson, the Appeal Panel does not find error in the Medical Assessor’s assessment of the appellant pursuant to the PIRS category of ‘social and recreational activities’ (class 2). The assessment was reasonably available to her, having regard to what she recorded in the MAC (which the Appeal Panel does not find to be inconsistent with the other evidence before her), and she is in the pre-eminent position to make those recordings. She has exercised her clinical judgement following her consultation with the appellant and has considered the medical evidence in the ARD and the Reply. The appellant’s submissions reveal his difference of opinion, rather than error from the Medical Assessor.
In relation to the PIRS category of ‘travel’, the Guidelines describe the following in Table 11.3:
“Class 1 - No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision.
Class 2 - Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.”
The Medical Assessor records that the appellant is able to travel locally without a support person (to his brother’s home, to his nephew’s daycare, to his local supermarket, and to his gym) but required a support person to travel to Lombok and the Gold Coast. She also records that he “has even driven to Sydney to see his doctor”. This recording is incorrect as the appellant’s treating general practitioner (Dr Smith) is in Nambucca Heads. However,
Dr Chivaurah in his 27 October 2023 report (found at page 120 of the ARD) refers to the appellant flying to Sydney on his own because he “had to go see a doctor in Sydney”. In his 10 July 2024 statement, the appellant says:
“I have a doctor and psychologist in Nambucca Heads, but unfortunately that is about 10 hours’ drive from where I currently live in Albury…EML don’t want to pay for me to travel to see my doctor or psychologist, suggesting I see someone in Albury but I just can’t face the prospect of ‘training’ another doctor or psychologist in Albury and going through with him/her everything that has happened…Usually, I will travel with my wife to the Nambucca Heads area so I could see the doctor or psychologist or do the appointment over the phone/computer if I don’t need to see them in person.”
He also says:
“When I do travel to see my doctor (GP Mark Smith, who I have known for some years and have 100% trust and faith in) I get in the car and I don't get out again until I get to Dr Smith's rooms. I'm not mixing with anyone. I'm driving down the Highway. It's not like I'm navigating my way through Sydney, or navigating a trip through western NSW.”
These statements suggest that (although not usually) the appellant is able to drive up to 10 hours without support. The Appeal Panel considers such travel to be neither local nor familiar, and the fact that the appellant is capable of such travel sometimes without support leads to him being unable to be assessed with mild impairment (class 2) according to the descriptor in Table 11.3 of the Guidelines. While the Appeal Panel notes that the descriptors are not exhaustive, it considers the appellant’s ability to travel up to 10 hours without support to be significant and reasonably supportive of the assessment of the Medical Assessor in relation to the PIRS category of ‘travel’.
In those circumstances, the Appeal Panel finds no error with the Medical Assessor’s assessment of the appellant pursuant to the PIRS category of ‘travel’ (class 1).
In relation to the PIRS category of ‘social functioning’, the Guidelines describe the following in Table 11.4:
“Class 2 - Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Class 3 - Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”
The Medical Assessor records the following:
“Mr Eddy said that his mom lives on the same block and mom often visits him and to see him and their three-year-old nephew. He said that his wife has been with him and has been pretty supportive. However, there was a time when he was contemplating to separate and had made arrangements for the same. He said that his wife has however been quite supportive and so have his adult kids, two of his adult kids live in Gold Coast and he visits them when he can. I have noticed that his relationship currently is not severely strained nor there is any evidence of domestic violence. In fact, Mr Eddy has been looking after his nephew with major support from his wife.”
In the appellant’s submissions, he specifically complains that the Medical Assessor did not take sufficient notice of his 10 July 2024 statement, particularly mentioning the following paragraphs:
“My wife and I separated (in the same house under the same roof) for a while. I lived downstairs and she lived upstairs…We have patched things up but from time to time the relationship is still very strained…I would say that I am hard to live with and I am very moody. Most days I don't do anything, and Pennie is left to pick up the slack.”
The appellant’s statement also deals with the following:
(a)    his loss of social interaction as a result of his reluctance to leave his home;
(b)    his forgetfulness and memory loss which has affected his social functioning;
(c)    he says - “I am irritated at home by family members and incidents of a minor nature. I am aware that my relationship with my children and partner is often rocky”;
(d)    his loss of the “camaraderie” that he experienced as a police officer, as he no longer socialises with police colleagues;
(e)    even when he rarely goes out to dinner with his wife, she “is continually challenging me about being distracted and distant as I scan the room, anyone entering or leaving or things happening in the area”, and
(f)    the significant support rendered to him by his wife (and to a lesser extent by his brother) during his holiday to Lombok.
The Appeal Panel also notes that in his 27 October 2023 report (found at page 120 of the ARD), Dr Chivaurah records the applicant as advising the following regarding the PIRS category of ‘social functioning’:
“When I first went off work my marriage was strained and we contemplated separating. I might have punched a wall but no violence towards her or towards my kids. My wife moved upstairs for a few weeks. This was last year some time ago. The relationship has since improved and she has moved back into the main bedroom 'it's better than it was. I think it's good'.”
In her most recent report dated 4 April 2024 (found at page 131 of the ARD), Dr Clarke also records the improvement in the appellant’s relationship with his wife:
“Since that examination [the doctor’s earlier examination of the appellant], he said that ‘the anger, the moodiness are better’ as is his relationship with his wife which is now ‘good’ after some brief conflict around the time he left work. These gains were attributed to ‘not working, not dealing with those situations, I assume the psychologist has helped.’ He had expected a return to living near his friends and family would improve his socialising more than it has but said that there have been no aggravations or stressors over that period and ‘I feel like I’m better, but I’m never going to be 100%’.”
On the evidence, the Appeal Panel is satisfied that the appellant has a strained relationship with his wife (involving tension and arguments) and has lost friendships. He is clearly able to be assessed in accordance with class 2 in relation to the PIRS category of ‘social functioning’.
However, it appears to the Appeal Panel on the evidence that he has an extremely supportive family, including his wife, his children, and his brother. He only separated from his wife (under the same roof) for a few weeks in 2022, but the overwhelming evidence is that their relationship has improved significantly since then. There is certainly no evidence of domestic violence, or any concerns with his caring for his nephew. In fact, the evidence indicates a good and caring relationship with his nephew.
Further, in a referral dated 16 November 2022 (found at page 397 of the Reply), the appellant’s general practitioner (Dr Smith) testifies to the appellant having “excellent home support and a good family support”.
In essence, the difference between a class 2 assessment and a class 3 assessment in relation to the PIRS category of ‘social functioning’ is whether the appellant’s established relationships have been strained or severely strained. Considering the extent of the support provided to the appellant by his family, the Appeal Panel does not consider his relationships with them to be severely strained.
In all the circumstances, in accordance with Jenkins, Parker and Ferguson, the Appeal Panel does not find error in the Medical Assessor’s assessment of the appellant pursuant to the PIRS category of ‘social functioning’ (class 2). The assessment was more than reasonably available to her, having regard to her recordings (as well as the recordings of Drs Chivaurah, Clarke, and Smith) regarding the strained but still extremely supportive familial relationships maintained by the appellant. She has exercised her clinical judgement following her consultation with the appellant and has considered the medical evidence in the ARD and the Reply. The appellant’s submissions reveal his difference of opinion, rather than error from the Medical Assessor.
In relation to the PIRS category of ‘concentration, persistence and pace’, the Guidelines describe the following in Table 11.5:
“Class 2 - Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.
Class 3 - Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”
The Medical Assessor bases her assessment under this category upon the appellant’s ability to focus during her consultation with him. She also records that the appellant has been able to follow complex instructions to “build a few sheds and fix things”, although she notes that he needs his wife to provide him with a list in relation to household chores for him to complete, and that he was unable to repair his chainsaw or “understand the instruction for earthing sent by his brother”.
In the appellant’s submissions, he complains about the Medical Assessor’s failure to consider his 10 July 2024 statement which details his “profound difficulties” with concentration, persistence and pace. In this regard, the Appeal Panel notes that the statement:
(a)    advises that the appellant has been unable to get past the first few pages of reading a book;
(b)    advises (contrary to what appears to be a misunderstanding by the Medical Assessor) – “I have built sheds before and recently we purchased a kit shed. I have tried a few times to get my head around he [sic] instructions to put together a new (kit) shed but I just couldn’t follow the instructions so I couldn’t even start the process”;
(c)    advises that any household task “that involves a bit of concentration” needs to be undertaken by the appellant’s wife;
(d)    advises that when the appellant attempted to arrange a trip for himself and his wife, he arranged the trip for incorrect days;
(e)    advises that the appellant’s wife deals with his taxation issues;
(f)    advises that the extent of the appellant’s reading is reading the “headlines or an article or two in the newspaper”;
(g)    advises that the appellant does not have the concentration to be able to coach football, umpire football, or coach cricket;
(h)    advises that the appellant cannot follow “the simple steps in recipes” when cooking;
(i)    advises that the appellant has difficulty concentrating when watching television, and
(j)    advises as to the appellant’s forgetfulness.
The Appeal Panel agrees that the Medical Assessor has failed to properly consider and record the appellant’s difficulties with concentration, persistence and pace, as detailed in his statement. The Medical Assessor has also incorrectly accepted that the appellant has the ability to follow instructions to build a shed. The ability to following instructions in this regard is an important descriptor within class 3 of the PIRS category of ‘concentration, persistence and pace’. In not appreciating the appellant’s inability to follow such instructions, as well as in failing to properly consider the appellant’s other difficulties as detailed in his statement, the Appeal Panel accepts that the Medical Assessor has fallen into error. The appellant’s complaints in this regard against the Medical Assessor are not limited to a difference of opinion, but rather factual errors.
In the circumstances, having regard to the appellant’s statement evidence, the Appeal Panel is satisfied that he should be assessed with a moderate impairment (class 3) in relation to his ‘concentration, persistence and pace’. In this regard, the Appeal Panel notes his inability to read more than newspaper articles, his inability to follow instructions (building plans for a shed), and his inability to follow recipes.
In relation to the PIRS category of ‘employability’, the Guidelines describe the following in Table 11.6:
“Class 4 - Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.
Class 5 - Totally impaired: Cannot work at all.”
The Medical Assessor assessed the appellant with a class 4 impairment in relation to ‘employability’ on the basis that she found “he can work less than 20 hours per fortnight and with reduced pace and more supportive environment”.
However, there is no further explanation for this opinion found in the MAC, and indeed no other discussion in it regarding the appellant’s capacity for employment. The opinion is bereft of reasoning.
In circumstances where there was no specific medical or other evidence before her to suggest that the appellant had any capacity for work, the Appeal Panel finds error with the Medical Assessor’s assessment. Considering the evidence to the contrary, the Appeal Panel finds the Medical Assessor’s assessment of the appellant’s capacity for work to be more than a mere difference of opinion, and an assessment that was not reasonably open to her.
In this regard, the medical and other evidence regarding the appellant’s capacity for work in the ARD and the Reply can be summarised as follows:
(a)    the appellant’s 10 July 2024 statement (found at page 1 of the ARD) – the appellant says that he has thought of what types of employment that he might be able to perform and he outlines those types of employments – he maintains however that is not fit for any of them, having regard to issues with them such as the potential for confrontation or violence, the need to interact with people, concentration difficulties, and confidence issues - he concludes that “I think it will be a long, long time before I am able to even contemplate returning to any sort of work, if ever”;
(b)    Dr Chivaurah’s 27 October 2023 report (found at page 120 of the ARD) - the doctor assesses the appellant in accordance with class 5 in relation to the PIRS category of ‘employability’, and he opines – “Mr Eddy is not likely to improve significantly beyond the current state and is highly likely not going to be able to return to work ever again”;
(c)    the report of Dr Whan (the appellant’s treating psychiatrist) to the respondent dated 20 January 2023 (found at page 107 of the ARD) - which certifies the appellant as permanently unfit for employment with the respondent, and which includes the following opinion regarding other potential work for the appellant – “Due to Mr Eddy’s significant PTSD symptoms and impairment in functioning I don’t believe he will be able to work in any capacity for the foreseeable future”;
(d)    the report of Bernadette Edwards (the appellant’s treating psychologist) to the respondent dated 1 March 2023 (found at page 109 of the ARD) - which certifies the appellant as having no capacity to work at all, and which includes the following opinion – “DSC Eddy is a significantly injured worker who would experience an exacerbation of symptoms if he was pushed to return to work of any kind”;
(e)    the report of Dr Smith (the appellant’s treating general practitioner) to the respondent’s insurer dated 13 March 2023 (found at page 112 of the ARD) - which answers a question posed by the insurer – “DSC Eddy will not have capacity to return to work NSW Police Force in any capacity nor any other employment in the foreseeable future”;
(f)    there are a number of certificates of capacity issued by Dr Smith and they consistently certify the appellant as having no current work capacity for any employment – the last such certificate in evidence (found at page 608 of the Reply) covers the period between 13 October 2023 and 31 January 2024;
(g)    the report of Bernadette Edwards to the respondent’s insurer dated 5 December 2023 (found at page 614 of the Reply) - she opines:
“Mr Eddy suffers from PTSD and Major Depression secondary to 24 years exposure to trauma in the NSWPF. The critical incidents he has attended over the years inclusive of years in the child abuse squad have led him to experience a raft of symptoms incompatible with any form of gainful employment. He continues to have difficulties with irritability and short-temperedness. He often experiences insomnia, lethargy, impaired attention and concentration and remains plagued by re-experiencing phenomenon, intrusive thoughts and images. He can also experience increased hypervigilance in public and lacks empathy. He remains highly avoidant, and all such symptomology is incompatible with employment...As clearly stated above there is no upgrade to capacity nor any time frame for any ability to return to work of any kind. Mr Eddy's psychological injury is permanent, and he requires total and permanent retirement.”, and
(h)    Dr Clarke’s 4 April 2024 report (found at page 131 of the ARD) – although the doctor assesses the appellant in accordance with class 3 in relation to the PIRS category of ‘employability’, she does not outline any specific work that the appellant would be fit for or provide details as to how many hours per week she believes he could work – her opinion is unhelpful as the extent of the reasoning for it seems to be:
“It is my opinion that Mr Eddy is likely to experience a recrudescence of the poor frustration tolerance and alcohol misuse should he return to employment involving further traumatic content. I consider this impairment permanent…His presentation is not consistent with other impairment, and I note he has been formally entrusted with the care of his nephew, which he described doing competently and appropriately.”

In the circumstances, and having regard to the extent of this medical evidence, the Appeal Panel will correct the error of the Medical Assessor in relation to her assessment of the appellant in relation to the PIRS category of ‘employability’, and substitute a class 5 assessment in this regard.
Having found partial error in relation to the various assessments undertaken by the Medical Assessor in accordance with the PIRS categories, the Appeal Panel finds the correct assessments to be as follows:
(a)    self-care and personal hygiene – class 1;
(b)    social and recreational activities – class 2;
(c)    travel – class 1;
(d)    social functioning – class 2;
(e)    concentration, persistence and pace – class 3, and
(f)    employability – class 5.
In accordance with the Guidelines, the relevant mean class score is 2 (1, 1, 2, 2, 3, 5) and the relevant aggregate class score is 14. As a result, in accordance with Table 11.7 of the Guidelines, the appellant’s permanent impairment is assessed at 7%.
The Appeal Panel notes that this assessment is greater than the assessment of the Medical Assessor as to the appellant’s permanent impairment.
For these reasons, the Appeal Panel has determined that the MAC issued on
27 August 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W23704/24
Applicant:	Glenn Thomas Eddy
Respondent:	State of New South Wales (NSW Police Force)

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Surabhi Verma and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - whole person impairment (WPI)

Body Part or system

Date of Injury

Chapter, page and paragraph number in NSW workers compensation guidelines

Chapter, page, paragraph, figure and table numbers in AMA 5 Guides

% WPI

Proportion of permanent impairment due to pre-existing injury, abnormality or condition

Sub-total/s % WPI (after any deductions in column 6)

Psycholog-ical Injury

15 November 2023 (deemed)

Chapter 11

Tables 11.1-11.7

N/A

Total % WPI (the Combined Table values of all sub-totals)

[2025] NSWPICMP 37

17 January 2025