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

DETERMINATION OF APPEAL PANEL
CITATION:	Everard v State of New South Wales (NSW Police Force) [2025] NSWPICMP 53
APPELLANT:	Cheyne Andrew Everard
RESPONDENT:	State of New South Wales (NSW Police Force)
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	30 January 2025
CATCHWORDS:	WORKERS COMPENSATION - Whether Medical Assessor’s (MA) ratings of the appellant’s impairment in self-care and personal hygiene and concentration persistence and pace are correct; Appeal Panel found that the MA’s rating of the appellant’s impairment in self-care and personal hygiene was correct but his rating of the appellant’s impairment in concentration persistence and pace involved error; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 8 October 2024 Cheyne Andew Everard, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Himanshu Singh, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 30 September 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (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).

RELEVANT FACTUAL BACKGROUND

The appellant worked as a police officer for the State of New South Wales, the respondent, from 2003 until he was medically discharged in November 2023. The last day on which he performed active duties was 31 May 2022. He suffered a psychological injury due to incidents to which he was exposed over the years he was employed.
The appellant claimed compensation from the respondent’s insurer under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for permanent impairment from his injury. He relied on a report of psychiatrist Dr Ashwinder Anand dated 6 October 2023 to support his claim. Dr Anand had examined the appellant on 4 October 2023 at the request of the appellant’s solicitor and in his report advised that he had assessed the degree of the appellant’s permanent impairment from his injury is 22% whole person impairment (WPI).
The respondent’s insurer notified the appellant on 19 April 2024 that it disputed he was entitled to compensation for permanent impairment from his injury. It advised him this was because it did not consider the permanent impairment from his injury was at least 15% that s 65A(3) of the 1987 Act required it to be for him to be entitled to compensation for permanent impairment under s 66 of the 1987 Act. It relied on a report of psychiatrist Dr Sergiu Grama dated 27 February 2024 who had examined the appellant on 21 February 2024 at the request of the insurer’s solicitor. In his report he advised he assessed the degree of the appellant’s permanent impairment from his injury is 7% WPI.
A medical dispute thereby arose between the parties regarding the degree of the appellant’s permanent impairment from his injury. The appellant initiated proceedings in the Personal Injury Commission (Commission) by filing an Application to Resolve a Dispute dated 11 July 2024 seeking determination by the Commission of his claim for compensation. On 2 August 2024 a Delegate of the President of the Commission issued a referral to the Medical Assessor, that was subsequently amended on 30 September 2024, and which required the Medical Assessor to assess the medical dispute between the parties. The Medical Assessor examined the appellant on 30 August 2024 in order to do that and, as said, issued the MAC on 30 September 2024.
The Medical Assessor certified in the MAC that he assessed the appellant has 11% WPI from his injury permanent impairment. His assessment was made by reference to the Psychiatric Impairment Rating Scale (PIRS), as detailed in paragraphs 11.11 and 11.12 and Tables 11.1-11.6 of the Guidelines. He rated the appellant’s impairment in self-care and personal hygiene as Class 2, in social and recreational activities as Class 3, in travel as Class 2, in social functioning as Class 2, in concentration persistence and pace (CPP) as Class 2, and in employability as Class 5. The Medical Assessor noted the median of those scores is 2 and that the aggregate is 16, with those values converting to 9% WPI in accordance with paragraphs 11.18-11.20 and Table 11.7 of the Guidelines. To that he added 2% WPI for “treatment effects”, which he obviously did by reference to paragraph 1.32 of the Guidelines.
The appellant in his appeal against the medical assessment has challenged the Medical Assessor’s rating of his impairment in the PIRS categories of self and personal hygiene and CPP.
In the PIRS rating form within the MAC the Medical Assessor provided the following reasons for rating the appellant’s impairment as Class 2 in self care and personal hygiene:
“Mr Everard is not as good in looking after himself as he used to be. He may skip showers if not doing much and his wife has reminded him on occasion to have a shower. He is not going for regular haircut and not trimming his beard regularly. He is not exercising enough and has put on weight.”
The Medical Assessor also recorded within the history he detailed in the MAC that the appellant helps his wife with house chores in the morning, but he also noted the appellant is not doing much of the house chores. The Medical Assessor also noted that the appellant does not mow his lawns on a regular basis. The Medical Assessor recorded that the appellant’s appetite is reduced and that he is not eating much but his weight had not changed. The Medical Assessor also recorded that the appellant attends an exercise psychologist once a fortnight but otherwise does not exercise at home or use his home gym. The Medical Assessor noted that the appellant had “put on a lot of weight” because his is not exercising enough.
At first blush, there is an apparent inconsistency between, on the one hand, the Medical Assessor recording, when detailing the appellant’s history relating to his appetite and eating, that the appellant’s weight had not changed and, on the other, the Medical Assessor recording, when detailing the history relating to the appellant not exercising enough, that the appellant had put on a lot of weight. The history the Medical Assessor detailed regarding both matters is described in the same paragraph. The Medical Assessor also noted in the MAC that the history he has composed should be read in conjunction with the appellant’s statement and the reports he had been provided. The appellant says in his statement at [27] that he previously exercised a lot and prided himself on his physical appearance. In context, it seems to the Appeal Panel that the history the Medical Assessor obtained about the appellant’s weight not changing may be a description of a more recent occurrence and the history relating to the appellant putting on a lot of weight is a description of what has occurred over the longer period since the time the appellant ceased his work, e.g. his treating psychiatrist, Dr Bhandari ,reporting in January 2023 that the appellant had gained 10kg in seven years prior.
The Medical Assessor provided the following reasons for rating the appellant’s impairment as Class 2 in CPP:
“Mr Everard stated that his concentration is not very good. When he had an appointment with Rehab, he was having problem with the paperwork to help him with that. He said that if it gets hard or difficult, then he has trouble concentrating. He has also been terrible in his memory, and he forgets things. He has never been a reader. He can follow the TV when he watches but gets distracted easily. He was able to sustain his focus and concentration during the assessment.”
The Medical Assessor also found during his mental state examination of the appellant that the appellant maintained good rapport with him during the examination and that he found no evidence of formal report disorder or delusional pattern of thinking and no perceptual abnormalities. The Medical Assessor found that the appellant had intact judgment and a reasonable insight into his issues and noted that the appellant described that his attention and concentration was poor.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination. This is because the information before the Appeal Panel is sufficient for it to determine the appeal.

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 Medical Assessor failed to have regard to his statement in which he said that he relies heavily on his wife and if not prompted by his wife he may forget to eat lunch or dinner. He also said that his wife prepares most meals or otherwise they rely on takeaway.
The appellant also noted in his submissions that he also said in his statement that he will wear the same clothes two or three times and does not care about how his clothes look or how clean they are. He also said that his wife prompts him to shower and reminds him to wash and to cut his hair. He said that he will only wash his hair if he needs to attend an appointment. He also said that he relies on his partner to pay his bills and has forgotten to pay his bills on certain occasions. He also said in his statement that he previously loved reading but now does not bother to pick up a book as he gets “distracted on the one page” and cannot recall characters or the story line. He said that he relies on his wife to remind him to do things and that he forgets appointments and forgets where he has placed his belongings. He said that he feels overwhelmed by bills and takes a long time to go through paper work and feels mentally exhausted when sitting down to do something for a little while.
The appellant submitted that a criterion for a Class 2 rating in self-care and personal hygiene required him to be able to live independently. The appellant submitted that “it is readily apparent from an examination of the documents” that he is not able to live independently and relies on his wife regarding his self-care and personal hygiene.
The appellant submitted that “the tests set out in the Guidelines”, relating to CPP, by which the Appeal Panel understood the appellant meant the descriptors provided in Table 11.5, are “not indicative of a level of concentration, persistence and pace consistent with a Class 2 mild impairment”. The appellant submitted that the evidence within the documents that were provided to the Medical Assessor indicates he has more severe impairment.
The appellant submitted that the Medical Assessor did not provide any reasons why his opinion differed from the opinion of Dr Anand.
In reply, the respondent submitted that the descriptors provided in Table 11.1 for a Class 2 or Class 3 impairment are examples only. The respondent submitted that a rating of the appellant’s impairment in Class 2 in self-care and personal hygiene is more appropriate than a Class 3 rating. The respondent submitted that the Medical Assessor assessed the appellant’s impairment in self-care and personal hygiene based on how the appellant presented on the day, and that accorded with the requirement of paragraph 1.6 of the Guidelines.
The respondent noted that Dr Anand’s assessment of the appellant’s impairment was conducted approximately 12 months before the Medical Assessor’s assessment. The respondent also noted that Dr Grama’s assessment was done on 27 February 2024 and that he assessed a Class 2 impairment for the appellant’s function in self-care and personal hygiene. The respondent also referred to a report dated 25 June 2024 that occupational therapist Elizabeth Hibberd conducted, in which Ms Hibberd recorded that the appellant maintains his independence with personal care, usually showering twice a day, and was observed by her to be well groomed and appropriately dressed. Ms Hibberd also noted that appellant was independent with cooking and meal preparation and that he had taken over responsibility for cleaning and laundry at his home because his wife had increased her work load.
The respondent submitted that the evidence demonstrated the appellant suffers at worst a mild impairment in self-care and personal hygiene. The respondent submitted that it could not be demonstrated that the Medical Assessor’s assessment of the appellant’s impairment in self-care and personal hygiene was not supported by the information or material provided.
With respect to the Medical Assessor’s assessment of the appellant’s impairment in CPP the respondent again referred to the report of Ms Hibberd in which she recorded that the appellant takes his son to football training and assists with the training session, that the appellant had arranged trades people to complete renovations of his house, and that she observed no issues with the appellant’s memory during her assessment. The respondent also referred to the report of Dr Grama who assessed the appellant had a Class 2 impairment in CPP. The respondent submitted that the Medical Assessor undertook an assessment as the appellant presented at examination and utilised his clinical judgment to assess the appellant’s impairment as Class 2. The respondent submitted that the assessment “is appropriately supported by available evidence” and that there is no demonstrable error.

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.
The Appeal Panel observes that the descriptors provided in Table 11.1 of the Guidelines for a Class 2 impairment in self-care and personal hygiene are:
“Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food”.
The descriptors provided for a Class 3 impairment are:
“Moderate impairment: Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2–3 times per week to ensure minimum level of hygiene and nutrition.”
In accordance with paragraph 11.12 of the Guidelines these descriptors are examples only of the conduct of a worker that a Medical Assessor can consider in the process of exercising his or her clinical judgment to assess a worker’s impairment in a particular PIRS category. They are not prescriptive, and act as guides only. The fact that a worker may exhibit conduct according with one or some of the descriptors in a class does not compel a Medical Assessor to rate the worker’s impairment within that class. A Medical Assessor must evaluate all the material before him or her, including the clinical history the Medical Assessor has elicited to determine the level of impairment the worker has in a particular PIRS category. That is, the Medical Assessor must consider and weigh all conduct of a worker relevant to a particular PIRS category in order to evaluate the degree of impairment in the particular category.
Whilst in his statement the appellant said that he relies heavily on his wife to prompt him to shower and wash his hair, he nevertheless has the capacity to undertake those tasks. Further, the history the Medical Assessor obtained at the time of the assessment is that the appellant skips showers if he is not doing much and on occasion his wife reminds him to shower. The Medical Assessor also obtained a history that the appellant does not go for regular hair cuts and does not trim his beard regularly. The Medical Assessor noted that the appellant assists his wife with the household chores. That accords with the observations of Ms Hibberd, which was made on 12 June 2024, at the appellant’s home, only shortly before the appellant made his statement, in that Ms Hibberd recorded the appellant had taken over responsibility for cleaning and laundry since his wife returned to full time work hours.
As recorded by Ms Hibberd, the appellant’s wife resuming full time work meant she was absent from 745am to 5pm each day which consequently had led to reduced support at home for domestic and childcare tasks. She recorded him showering twice per day, being independent in cooking and meal preparation, and undertaking domestic chores. She noted reduced motivation and the appellant at times being overwhelmed with domestic duties and renovation tasks.
As said earlier, the Medical Assessor noted that the history he composed needed to “be read in conjunction with the previous reports and detailed statements provided by Mr Everard”. It is apparent from that that the Medical Assessor had read the appellant’s statement. The Medical Assessor consequently composed the history he detailed in the MAC cognisant of what the appellant had said in his statement.
Based on the history the Medical Assessor detailed in the MAC, the contemporaneous evidence, and the reasons he provided for rating the appellant’s impairment in self-care and personal hygiene as Class 2, the Appeal Panel can discern no error in his rating. At the time the Medical Assessor conducted his assessment the situation was that the appellant was able to cook and undertake household chores and to attend to his hygiene with very limited assistance from his wife. The Medical Assessor noted the appellant was not eating as much as he previously did. He There is no error in concluding that is a mild impairment, in the Appeal Panel’s view.
With respect to CPP, the Appeal Panel considers that the Medical Assessor has made an error with respect to the history he detailed relating to the appellant’s reading. The Medical Assessor said that the appellant had “never been a reader”. That is contrary to what the appellant has said in his statement in that he said he was an avid reader. The appellant now reports he is unable to read more than a page without losing concentration.
The Medical Assessor also detailed that the appellant does not have good concentration and recently had difficulty with paper work when attending an appointment. The Medical Assessor also detailed that the appellant is easily distracted when watching TV.
The descriptors provided in Table 11.5 for a Class 2 impairment are:
“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.”

For a Class 3 impairment they are:
“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.”
As said earlier, these descriptors are intended to provide guidance only to a Medical Assessor when evaluating the seriousness of a worker’s impairment in a particular PIRS category. That said, based on the evidence that was before the Medical Assessor, the Appeal Panel considers that the only current conduct on the part of the appellant relevant to CPP that would support a moderate impairment is the fact that the appellant was recorded in the PIRS table as “able to sustain his focus and concentration during the assessment”. Against that, the evidence reveals that the appellant, who was once an avid reader, is no longer able to maintain his concentration after one page of reading, and the Medical Assessor notes he has difficulty completing paper work and becomes disoriented whilst watching TV. Further, the evidence in the form of Ms Hibberd’s report indicates that the appellant experienced difficulty with persistence of tasks such as cleaning, which caused him exhaustion if doing it for a prolonged period. That demonstrates that the appellant struggles to maintain a persistent pace.
Ms Hibberd also recorded objective difficulties in concentration and the appellant persisting with her assessment due to distractibility, and difficulties persisting with renovation tasks despite the financial impact of delays.
In the Appeal Panel’s view these matters demonstrate that the appellant has a moderate impairment in CPP and that it was not open to the Medical Assessor to rate the impairment’s impairment as Class 2. There is no conduct recorded either in the history or assessment that is similar to the examples for a mild impairment rating, but consistent evidence of impairment in reading and repair/renovation task completion that matches a Class 3 rating. In other words, the Medical Assessor made an error in his clinical judgment when rating the appellant’s impairment in Class 2, which error amounts to a demonstrable error.
The Appeal Panel does not accept the appellant’s submission that the Medical Assessor made an error by not explaining why his opinion differed from Dr Anand. The Medical Assessor has clearly considered the report of Dr Anand. He was not required to explain why he did not come to the same opinion as Dr Anand. He did not have to explain why he did not form an opinion he did not reach. Further, insofar as he explained his assessment, it is apparent why his opinion differs from Dr Anand.
Given that the Appeal Panel has found an error with respect to the Medical Assessor’s rating of the appellant’s impairment in CPP it must correct that error. It does so by rating the appellant’s impairment as Class 3. That means that the median of the appellant’s scores increases to 3 and the aggregate of his scores is 17, which correlates with a 19% WPI.
Given that the Appeal Panel’s assessment of the appellant’s permanent impairment is far higher than the assessment the Medical Assessor made, the Appeal Panel must consider whether paragraph 1.32 of the Guidelines can be engaged. This is because the Appeal Panel is making a fresh assessment of the appellant’s permanent impairment from his injury and paragraph 1.32 requires a comparison between that assessed impairment and the appellant’s post injury but pre-treatment impairment.[1]
[1] Zoric v Secretary, Department of Education & ORS [2024] NSWSC 131 at [63]; Peachey v Bildom Pty Ltd (Quality Siesta Resort Pty Limited and Quality Hotel) [2020] NSWSC 781 at [52].
The Appeal Panel considers that paragraph 1.32 cannot be engaged in this case. This is because the appellant’s permanent impairment has not improved between his post-injury and current states sufficiently to meet all three criteria required. The Appeal Panel notes the appellant has been provided evidence based treatment over a long period: he attended a group program, engaged in treatment with his psychologist and psychiatrist and has taken psychotropic medications for two years. The appellant records in his statement that despite treatment he continues to have “persistent psychological symptoms”, impairment across many domains, is “still figuring out which will be most effective” and cannot see how he will get better. In reviewing the evidence, e.g. Dr Bhandari’s summary of the appellant’s condition over the first six to nine months after ceasing work as treatment was being initiated, the Appeal Panel can discern no period of time since the injury when the appellant was much more impaired, such that treatment has been effective and resulted in a substantial elimination of that impairment to that assessed now.
For these reasons, the Appeal Panel has determined that the MAC issued on 30 September 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W23612/24
Applicant:	Cheyne Andrew Everard
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 Himanshu Singh 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 WorkCover Guides	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)
Psychiatric / psychological disorders	3/12/2019	Chapter 11	Chapter 1	19%	-	19%
Total % WPI (the Combined Table values of all sub-totals)					19%

[2025] NSWPICMP 53

30 January 2025