Fisher v Redcape Hotel Group Pty Ltd
[2025] NSWPICMP 244
•8 April 2025
DETERMINATION OF APPEAL PANEL CITATION: Fisher v Redcape Hotel Group Pty Ltd [2025] NSWPICMP 244 APPELLANT: Zachary Fisher RESPONDENT: Redcape Hotel Group Pty Limited APPEAL PANEL MEMBER: Carolyn Rimmer MEDICAL ASSESSOR: Nicholas Glozier MEDICAL ASSESSOR: Michael Hong DATE OF DECISION: 8 April 2025 CATCHWORDS:
WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); psychiatric injury; appeal in respect of five of the psychiatric impairment rating scales (social and recreational activities, travel, social functioning, concentration, persistence and pace, and employability); matters that Medical Assessor (MA) relied upon from the surveillance report not put to the worker; worker’s statement addressing issues in surveillance report not considered by MA; error in the assessment of all five scales as the reasoning process for assessing was unable to be made out; worker re-examined; Held – MAC revoked; new certificate issued.
BACKGROUND TO THE APPLICATION TO APPEAL
1.On 9 December 2024 Zachery Fisher (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ankur Gupta, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 14 November 2024.
2.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.
3.The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
4.Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
5.The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
6.The appellant suffered a psychological injury in the course of his employment as a chef with the Redcape Hotel Group Pty Ltd (the respondent) deemed to have occurred on 1 October 2020.
7.The appellant commenced proceedings on 5 August 2024 in the Personal Injury Commission (Commission) claiming 22% whole person impairment (WPI) pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of a psychiatric and psychological disorder injury deemed to have occurred on 1 October 2020.
8.The matter was listed before Member Michael Wright who issued a Certificate of Determination - Consent Order on 25 October 2024 in which he made the following findings and orders:
“1. Matter emitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows:
a. Date of injury: 7 October 2020 (deemed) disease
b. Body systems/parts: Psychological/psychiatric disorder
c. Method of Assessment: Whole person impairment
2. The documents to be reviewed by the Medical Assessor are:
a. Application and attached documents, and
b. Reply and attached documents,
c. Application to admit late documents dated 18 October 2024, and attached documents”
9.The Medical Assessor examined the appellant on 7 November 2024. The Medical Assessor assessed 8% WPI and deducted one tenth for pre-existing injury, condition or abnormality which resulted in a total of 6% WPI as a result of the injury deemed to have occurred on
7 October 2020.
PRELIMINARY REVIEW
10.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.
11.The appellant requested that he be re-examined by a Medical Assessor who is a member of the Appeal Panel.
12.As a result of that preliminary review, the Appeal Panel determined that there was an error in the MAC and the appellant should undergo a further medical examination because there was insufficient information on which to make a determination.
EVIDENCE
Documentary evidence
13.The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Further medical examination
14.Medical Assessor Michael Hong of the Appeal Panel conducted an examination of the appellant on 31 March 2025 and reported to the Appeal Panel.
Medical Assessment Certificate
15.The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
16.Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
17.The appellant’s submissions include the following:
(a) the Medical Assessor placed significant relevance on surveillance material and made inferences from that material but ignored and did not refer to the appellant's evidence on that material to clarify issues with the surveillance material. The Medical Assessor by not making enquiries with the appellant as to the content of the surveillance material and his evidence in that regard, assessed the appellant on incorrect criteria and this was a demonstrable error. The Medical Assessor did not refer to the appellant’s statement or clarify important issues which have ultimately led him into error of his classification of the appellant under the Psychiatric Impairment Rating Scales (PIRS) scales;
(b) ground 1 - social and recreational Activities - the Medical Assessor found mild impairment was based on the fact: "He has attended a concert and even had a holiday in Fiji since the injury. His surveillance report showed that he has been more social than he has been stating”;
(c) in relation to the findings on social and recreational activities, the appellant stated that he did not attend the concert and therefore the finding of him being able to attend a concert is at odds with the evidence. The Medical Assessor did not make enquiries or comment on this at all despite the denial of the appellant but simply found it to be true without regard to the evidence or further questioning of the appellant. This led to the Medical Assessor falling into error by assessing him on incorrect criteria and is a demonstrable error in a failure to properly explore and address the evidence on that matter;
(d) in relation to the Fiji holiday there was a failure on the Medical Assessor to refer to the evidence contained in the appellant’s statement addressing that issue. That trip took place in March 2020 when the date of injury is not until October 2020. That trip occurred before the appellant was injured and at a time when he was working full time with the respondent. Taking into account that he could travel overseas when he did not do so following the injury has led to him assessing the appellant on incorrect criteria and is a demonstrable error;
(e) the appellant in his statement dated 27 May 2024 refers to his trip to Fiji at paragraph 11. The Medical Assessor had no regard to that statement at all on the face of the record, which is an error;
(f) in terms of the surveillance showing that he had been going out more than he stated this is not correct. The statements of the appellant concede that he did go out, albeit, rarely. His statements say that he only ever does so when with a support person and there is nothing in the surveillance which would indicate that was not correct. There is no evidence of him attending parties or other social functions. There is scant evidence of him attending a local shop and going for a swim at a local pool accompanied by his partner, as referred to at paragraphs 13 and 14 of his statement dated 27 May 2024. There is reference in the surveillance to only a couple of activities over a number of years which would not justify a finding of a mild impairment. The content of the surveillance is not inconsistent with any of the evidence that the appellant has given that he is able to attend local shops and that he rarely went out with his partner and only when prompted to do so. It appears that this evidence was simply overlooked, not addressed or not questioned. To this extent the Medical Assessor was in error;
(g) the above evidence of social activity contained in the surveillance report was obtained over a three and a halfyear period following the injury. The odd outing for an anniversary or locally has never been denied by the appellant and does not remove him from “rarely going to events and only when prompted by close family or friends to do so”, which would put him as a
Class 3. One or two photos of outings over a number of years does not justify the finding that the appellant had only a mild impairment in that regard. For this reason, the Medical Assessor has erred in providing insufficient reasons and not investigating the matter further with the appellant in the examination;(h) ground 2 - travel –the Medical Assessor formed a negative view of the appellant based on the surveillance report without properly addressing those matters or the evidence of the appellant in relation to his travel. The Medical Assessor found that he had travelled internationally to Fiji when the appellant did not travel to Fiji after the injury but before it. This was not properly clarified leading to a demonstrable error and an assessment based on incorrect criteria;
(i) the evidence as to travel is otherwise internally consistent, that is that he only travels locally. There is nothing in the surveillance report of elsewhere of any evidence of him not travelling locally and even then, the evidence is consistent that he does so only with a support person;
(j) those matters and the evidence of the appellant are consistent with the surveillance report but were not properly addressed when assessing the class for travel. Based on the evidence of the surveillance report it cannot be established that the appellant is travelling any distance from his home and certainly not without a support person, which is confirmed in the surveillance report, and as such to be classified as Class 2 is inappropriate as there is at least a moderate restriction, being a Class 3;
(k) the travel restrictions of the appellant are contained at paragraph 107 of his statement dated 30 June 2023. There is nothing in any of the evidence which shows that not to be the correct position. Therefore, the finding of
Class 2 is not warranted and has been based on incorrect factual assumptions regarding his travel, including to Fiji which did not occur after his injury. Indeed, the Medical Assessor states in his report that "He visits family but not on his own ... he says that he can go to his backyard but does not leave the house alone";(l) ground 3 - social functioning - the Medical Assessor has classified him as
Class 1, that is, no deficit or minor deficit attributable to the normal variation of the general population;(m) there is an abundance of evidence in the appellant’s statements that he has lost significant outside friendships and that his relationship with family has at times been strained, including periods of separation from his partner since the injury as referred to in paragraph 112 of his statement dated 30 June 2023.
The appellant has lost substantial friendships outside of his immediate family as a result of this injury and that this is not normal or minor deficit in the general population and as such has been misclassified and assessed on incorrect criteria;(n) the Medical Assessor has made a demonstrable error by not assessing the overwhelming evidence suggesting that he has lost friendships over his social isolation and that he has suffered substantial difficulties with his relationships, including periods of separation from his partner;
(o) the evidence in the appellant’s statement is in stark contrast of a finding of someone who has no deficit or minor deficit attributed to normal variation in social functioning. The history taken was inadequate and did not address the issues raised by the appellant in his statements. Nowhere in the MAC does the Medical Assessor refer to those allegations or seek to clarify them with the appellant. The failure to do so is both a demonstrable error and has led to assessing the appellant on incorrect criteria;
(p) ground 4 - concentration, persistence and pace - In the category of concentration, persistence and pace, the Medical Assessor found only a mild impairment. The Medical Assessor found on his clinical observations that "He was able to remember the details from his workplace. He remembers to take his mediation. He manages his finances independently". This does not adequately address the examples in the Guidelines. The fact that the appellant was able to remember details from his workplace injury and takes his medication are hardly significant matters or intellectually demanding tasks. There is no evidence that his concentration was such that he could undertake a re-training course or something of that like;
(q) the history given by the appellant to the Medical Assessor at page three of the MAC under Social Activities states: "He says he has not driven in a long time as he cannot focus." He further states: "He says he cannot focus on films for more than five minutes" and that " ... his memory is "terrible"". This is not consistent with the finding made and was absent any explanation as to the contrast in the evidence of the appellant’s statements with his finding with no clarification as to the difference between the two positions;
(r) the Medical Assessor misadvised himself by stating that the appellant can manage his own financial affairs. The only history taken by the doctor in that regard is that he gets paid by Centrelink and is aware of what he gets and how it gets spent. That does not indicate that the appellant is managing the budget as opposed to his partner and was not clarified. Knowing how much he would receive from Centrelink and how it is spent is not really an indicator that he is not more than mildly impaired for memory and concentration.
To that extent the appellant relies on the evidence that he gave in paragraphs 115 to 119 of his statement dated 30 June 2023 at page 39 of the ARD which were not queried or raised by the Medical Assessor for consistency and not clarified as to why he accepted one version over another, which was significantly different;(s) ground 5 - employability - it is further submitted that the Medical Assessor's finding in relation to employability is tainted by the above findings as clearly his concentration, ability to travel and other matters which he has dismissed as a result of the surveillance report would have some bearing on that.
(t) the evidence of Dr Rastogi was that he was totally incapacitated for work.
Dr Kaplan agreed that he was totally incapacitated for work and only changed his view as a result of the surveillance report which was taken out of context with no further clarification was sought;(u) if regard was had to all of the evidence that the appellant would have received higher classifications in the PIRS categories leading to an impairment in excess of the threshold. The Medical Assessor formed a negative view of the appellant based on the surveillance without properly addressing those matters, or the evidence that the appellant had put forward. It is improper in those circumstances to make findings without having clarified the contrasting positions and has led to the appellant being assessed on incorrect criteria and is a demonstrable error, and
(v) in light of the errors outlined above, the appellant should be re-assessed by the Appeal Panel.
18.The respondent ‘s submissions include the following:
(a) the Medical Assessor is entitled to form his own view of the appellant’s functioning and impairment based on the material forwarded to him in conjunction with clinical examination on the day (Paragraph 1.6 of the Guidelines). The Guidelines specifically require a Medical Assessor to use their clinical judgment and that is what the Medical Assessor did;
(b) a Medical Assessor has no obligation to summarise or refer to every single piece of evidence before them. The Medical Assessor confirmed the documents referred for his assessment were all those listed in the referral. There were a number of statements, both in the ARD and the Reply, and none are specifically summarised in the MAC but that does not mean they were not reviewed and taken into account. The Medical Assessor summarised treating reports as well as expert reports from both parties and surveillance material;
(c) the Medical Assessor appropriately exercised his clinical judgment by considering the appellant’s self-report on the day of the assessment in the context of the other evidence. It was open to the Medical Assessor to consider the objective surveillance and desktop material;
(d) ground 1 - social and recreational activities - the fact that the trip to Fiji took place in March 2020 prior to the deemed date of injury in October 2020 is not relevant as the events complained of by the appellant occurred over the course of 2020. Indeed, the Medical Assessor took a history on page two of the MAC that “his symptoms started around January 2020 when the head chef, Mr JA, started”. The allegations of bullying and harassment by the appellant against JA occurred throughout 2020 and culminated in him ceasing work in October 2020.
Dr Rastogi, on 5 May 2023 (page 116 of the ARD) reported, “eight months of repeated bullying, criticism, humiliation, swearing, unrealistic expectations and work overload, making insensitive comments about his weight and questioning his competency”;(e) there is no indication, including in the evidence relied on by the appellant, that the appellant did not have symptoms prior to ceasing work. Therefore, the Medical Assessor reasonably considered the fact that the appellant was able to travel overseas during a time of he was experiencing psychological symptoms from alleged bullying and harassment;
(f) the appellant contested, in his statement, that he attended the Taylor Swift concert. In the Instagram photo of the appellant and his fiancée (page 47 of the Reply), he was well dressed and had colourful rainbow stickers/art on his neck and the caption was “We are ready for it!! #tserastour #committedtothecostume”. Someone posted about the photo “You both slayed so hard”. It was open to the Medical Assessor to have accepted that he was dressed for and attended the concert;
(g) the appellant told the Medical Assessor that he goes out for a meal with his fiancée once every two months and has been out for meals on special occasions. That was taken into account by the Medical Assessor. He also took into account that the appellant had been going to the club at least twice a week (page 76 of the Reply);
(h) the appellant has not referred to any actual error by the Medical Assessor. The Medical Assessor appropriately considered his clinical examination and the
self-report by the appellant in the context of the other evidence before him. The Medical Assessor was entitled to consider the material obtained in the desktop report and on surveillance. He does not have to accept the appellant’s entire
self-report at face value without regard to any other evidence, particularly if that evidence may be contradictory. When asked to comment on the consistency of presentation, the Medical Assessor stated the appellant “spontaneously answered some questions around the Psychiatric Impairment Rating Scale, which suggests that some of his answers were rehearsed”;(i) the appellant has asserted there is “scant evidence” of the appellant attending a local shop or going for a swim at the local pool. The appellant is essentially asserting that the surveillance material should not be given much weight, yet also asserting there is a lack of surveillance, photographs or otherwise of him attending shops or going swimming. That is contradictory and does not mean that there is an absence of that occurring. The surveillance was only a small snapshot of a finite period of time. The appellant is referring to a lack of evidence regarding outings as opposed to asserting he does not go on outings such as to the local shop or swim at local pools. In any event, the appellant submits that is contrary to the available evidence;
(j) ground 2 - travel - regarding the appellant’s travel to Fiji the submissions above for the travel domain are repeated;
(k) the evidence establishes that he can travel well beyond familiar areas such as the shops or the neighbours. He goes out with his fiancée, visits his family, can travel in a car, and has been to a concert;
(l) with respect to the appellant’s submissions that the Medical Assessor misunderstood or did not question the appellant about the surveillance material, those comments by the appellant cannot form the basis of an appeal under s 327(c) or (d) of the 1998 Act (Marina Pitsonis V Registrar of The Workers Compensation Commission & Anor [2008] NSWCA 88);
(m) the respondent submits that the reasoning provided by the Medical Assessor was appropriate and entirely fitted within the Class 2 category;
(n) ground 3 - social functioning - The class descriptors for Classes 2 and 3 in Table 11.4 of the Guidelines requires strained existing relationships as well as tension and arguments with partner or close family. It is clear from the history taken by the Medical Assessor that the appellant has strong relationships with his family. The appellant’s statement made over 18 months ago regarding reference to separation from his fiancée does not provide details or time periods. On current examination, the appellant clearly has a strong relationship with his fiancée and family. The appellant is attempting to cavil with the history taken by the Medical Assessor because there was reportedly a previous period of separation from his partner over 18 months ago or has lost some friendships because of reduced socialising. The Medical Assessor has explained the reasons for his findings and how that fits into an assessment of Class 1. The respondent submits the appellant’s complaints are only regarding a difference of opinion, not a demonstrable error;
(o) the appellant has referred to paragraphs in his statement (page 38 of the ARD) which includes reference to irregular contact with his family. This is contrary to the history taken by the Medical Assessor, a history given by the appellant himself. The Medical Assessor does not need to reconcile the history taken at the time of the assessment against the appellant’s prior statement if it is contradictory because it is the appellant who is giving a history of his current functioning to the Medical Assessor. That does not amount to a demonstrable error or an assessment based on incorrect criteria;
(p) Basten J in his decision in Campbelltown City Council v Vegan [2006] NSWCA 284 held that incorrect criteria “must refer to such matters as the tests set out in the Guidelines, where they are applicable”. His Honour further stated that “possible inaccuracies in the history of the matter did not establish ‘incorrect criteria’”;
(q) ground 4 - concentration, persistence and pace - Whilst the appellant’s self-report is that he has reduced concentration and memory, the Medical Assessor pointed out that was not apparent on his clinical examination of him or apparent throughout the interview. A person who can remember details from events that occurred almost five years ago, and a psychiatrist has not identified any impairment in their concentration or memory on examination, is not commensurate with someone who is only able to follow a film for five minutes. It is not the role of a Medical Assessor to accept a worker’s self-report solely and disregard the other available evidence even if it may be contrary to a self-report;
(r) tables 11-1 to 11.6 in the Guidelines are examples only and that the Medical Assessor must exercise their clinical judgment in assigning the appropriate class value. The Medical Assessor is not obligated to take a specific account of each example, such as, whether a claimant thinks they could ‘undertake a basic retraining course’ but rather should consider the history and material before them in exercising their clinical judgment in assigning the appropriate class value. That is what the Medical Assessor has done;
(s) ground 5 - employability – no actual error regarding the category of employability has been identified, only a reference to Dr Rastogi, who considered he is totally incapacitated for work, and that the Medical Assessor placed too much weight on the surveillance report. This is not what the Medical Assessor has done. He exercised his clinical judgment and provided an opinion the appellant could work up to 20 hours per week in a less stressful environment. The appellant has not provided any actual explanation as to any error on the part of the Medical Assessor that would warrant a higher assessment;
(t) the appellant had the opportunity to clarify any aspect at the examination if he wished but did not do so. The Medical Assessor has provided appropriate and sufficient reasoning in support of his allocation of Class 3 and there was no error;
(u) based on the detailed history taken and reasoning by the Medical Assessor, the appellant has not made out any error on the face of the MAC in any of the PIRS categories. The respondent submits there was no error in the Medical Assessor allocating Class 2 for social and recreational activities, Class 2 for travel, Class 1 for social functioning, Class 2 for concentration, persistence and pace and
Class 3 for employability. The appellant has failed to make out any use of incorrect criteria or demonstrable error, and(v) the MAC should be upheld.
FINDINGS AND REASONS
19.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.
20.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.
21.The Appeal Panel reviewed the history recorded by the Medical Assessor, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
Ground 1 – social and recreational activities
22.The appellant submits that the Medical Assessor Medical Assessor falling into error by assessing him on incorrect criteria and is a demonstrable error in a failure to properly explore and address the evidence on that matter. The appellant argued that erred in providing insufficient reasons and not investigating matters further with the appellant in the examination.
23.The examples under Table 11.2 for “social and recreational activities” in the Guidelines are:
“Class 2: Mild impairment: occasionally goes out to such events e.g. without needing a support person, but does not become actively involved (e.g. 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.”
24.The Medical Assessor assessed the appellant as Class 2 for social and recreational activities. In the PIRS Rating Form, the Medical Assessor wrote:
“Social and recreational activities - Class 2
As described in the main body of the report, there is mild impairment. He has attended a concert and even had a holiday in Fiji since the injury. His surveillance report showed that he has been more social than he has been stating. He says he goes out on special occasions and for meals with his fiancée every now and then. It is documented that he had started gambling and used to go to the club twice a week”.
25.Under “Social activities/ADL” the Medical Assessor wrote:
“Mr Fisher says that he cannot function properly. He needs prompting to eat and shower and clean his teeth. He takes his medications regularly but needs prompting from his partner. He visits his family but not on his own. He goes out with his partner or other members of his family. He says he can go to his backyard but does not leave the house alone. He watches movies with his fiancée. He goes out for a meal with his fiancée once every two months. He has been out for meals on special occasions. He says he cannot focus on films for more than five minutes. He watches videos on his phone and plays a game. He says his memory is terrible. He gets paid by Centrelink and is aware of what he gets and how it gets spent. He says he last had a haircut months ago, but his ‘hair length is less’. He says that his appetite is up and down and he either needs to be prompted or binge eats. He underwent gastric sleeve surgery in 2021 but says that is not the cause of his poor appetite. He says he has not driven in a long time as he cannot focus. He gets on very well, with his fiancée’s sister and mother. He gets on very well with his fiancée. They are ‘stronger’ together. He gets on well with his sister and parents as well. He has lost friendships as he has stopped contacting them. He says that he is scared to work as he feels that he will be exposed to similar trauma if he returns to work”.
26.In his statement dated 30 June 2023, the appellant wrote:” I used to enjoy fishing. I no longer do that as I do not like leaving the house…I do not go out or attend social events even if I am prompted to do so, I will not leave my place of residence to attend social functions.”
27.In his statement dated 27 May 2024, the appellant referred to the surveillance report and confirmed that in the period of surveillance over four days he was seen leaving his house with his fiancé as a passenger and going to a local food place where they stayed to collect food for approximately 10 minutes. He stated that he had never said that he could not go to the local area with a support person which is what the video shows. The appellant then stated that the trip to Fiji occurred before he stopped work with the respondent and the fact that he could travel then was not inconsistent as he was still able to work at that stage. He stated that the systemic bullying led to his injury and him leaving the respondent on October 2020 when he could no longer cope. The appellant also referred to a day out swimming at a local baths close to his home in a bushland setting which was quiet and secluded. He described that as a rare outing with his fiancée. He stated that he only went there because if he did not go to some of those things, it was unfair on his fiancée.
28.The appellant referred to the Taylor Swift concert and stated that this was something that his fiancée attended, and she had taken a photograph before attending the concert with some of her friends. He stated that he did not attend the concert. He stated that the post relied on relating to therapy was a post by his fiancée and had nothing to do with him. He stated that the last post referred to was a photograph of him smiling on his birthday and he never denied that he could smile.
29.In her report dated 5 May 2023, Dr Rastogi assessed the appellant as Class 3 for social and recreational activities and provided the following reasons:
“Moderate impairment as he is inert, stopped socialising, does not enjoy and he avoids going to shops. He is more reclusive, lost friendships and feels socially inept and scrutinised. He is unable to handle high stimulus environment.”
30.Dr Rastogi noted: “Social - he is inert, stopped socialising, does not enjoy it and he avoids going to the shops. He does not entertain, avoids talking to people, lost friendships and stopped fishing, playing boardgames that he enjoyed weekly and going for social events”.
31.Associate Professor Kaplan in his report dated 14 April 24 assessed the appellant as Class 2 for social and recreational activities and provided the following reasons:
“He watches television and occasionally goes to a restaurant or coffee shop or for a walk. He went to the Gold Coast for three weeks last year. He keeps in touch and visits his family in Albion Park. He goes to the pub at least twice a week to gamble on poker machines”.
32.In the Procare Surveillance Report dated 16 January 2024 reference was made to surveillance conducted on four days in December 2023 and January 2024. The appellant was not sighted on the three of the four days. On one of the days, he was seen leaving his residence as a passenger in a vehicle accompanied by two women and going to a café where he stayed for about 15 minutes before leaving carrying takeaway with the women and returning to his residence.
33.In the Open Source Desktop Investigation Report dated 7 April 2024 Mr Edmund O’Reilly identified two posts by the appellant on 4 October 2023 and 13 January 2024. The post on
4 October 2023 included photographs of the appellant and his partner in a car celebrating their anniversary. The post on 13 January 2024 showed photographs of the appellant and his partner and referred to a “fantastic day out with lots of swimming and eating fresh berry doughnuts”. The report referred to the appellant’s partner’s social media account and included two photographs of the appellant and his partner, the first before what was described as a Taylor Swift concert on 25 February 2024 and the second a photograph of the appellant and his partner on his birthday in October 2023. Mr O’Reilly noted that there had been no new publicly visible activity associated with the appellant’s google ID.34.The Appeal Panel is, on balance, satisfied that the Medical Assessor did not put the matters described in the two investigation reports and Dr Kaplan’s report to the appellant during his examination. The Appeal Panel is satisfied that the failure by the Medical Assessor to question the appellant about aspects of the surveillance material, such as the Taylor Swift concert and the day out swimming, resulted in these matters either not having been addressed or not having been adequately addressed by the Medical Assessor.
35.The Medical Assessor also did not refer to the appellant’s statement dated 27 May 2024 in which the appellant addressed the matters raised in the two investigation reports. The Appeal Panel considers that the Medical Assessor is required give the appellant a reasonable opportunity to present his case. The Medical Assessor should have given the appellant an opportunity to explain any alleged inconsistencies between the history taken and the surveillance reports and the history taken by Dr Kaplan before drawing any conclusion concerning the appellant’s credit. Procedural fairness requires that a Medical Assessor provide adequate reasons in his decision so that the parties can understand the reasoning process, why certain evidence was accepted or not accepted and how the assessment was arrived at.
36.The Medical Assessor did not provide in his reasons an adequate explanation of why he accepted that the appellant had attended the concert and why he concluded that the appellant had a holiday in Fiji since the injury. The surveillance report does not show that the appellant has been more social than he has been stating. Further, the history of attending the club and gambling was not put to the appellant, nor were enquiries made as to whether he was still attending the club. The Appeal Panel is satisfied that the Medical Assessor did not explain the basis for his conclusion that the surveillance report showed that the appellant has been more social than he has been stating when the surveillance report only showed that he attended a café on one occasion to collect take away food with his fiancée and another woman.
37.The Appeal Panel is satisfied that the Medical Assessor failed to give the appellant an adequate opportunity to explain any alleged inconsistencies between the history taken and the surveillance reports and the history taken by Dr Kaplan. In those circumstance, the Appeal Panel concludes that the Medical Assessor failed to provide sufficient reasons for rating the appellant as Class 2 for social and recreational activities and such failure was a demonstrable error.
Travel
38.The appellant submitted that the Medical Assessor formed a negative view of the appellant based on the surveillance report without properly addressing those matters or the evidence of the appellant in relation to his travel.
39.The examples under Table 11.3 for “Travel” in the Guidelines are:
“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.
Class 3 Moderate impairment: Cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment”.
40.The Medical Assessor assessed class 2 in relation to travel noting:
“As described in the main body of the report, there is mild impairment. He does not drive because of a lack of focus but is able to travel as a passenger. He did not describe a fear of driving. He has travelled internationally since the injury as well. He is unable to use public transport on his own.”
41.Under “History relating to injury” the Medical Assessor noted:
“He says Mr JA called and told him to open the kitchen up post-COVID lockdown.
He was made to work from 8 AM to 4 PM without any break. He says that that was the start of his problems and then Mr JA started belittling him and harassing him”.
42.Under “Social Activities/ADL” the Medical Assessor noted: “He goes out with his partner or other members of his family. He says he can go to his backyard but does not leave the house alone… He says he has not driven in a long time as he cannot focus”.
43.At paragraph 107 of the appellant’s statement dated 30 June 2023, he states, "In terms of travel I have extreme difficulty even leaving my own residence even if my fiancée goes with me and even if it is in the local area. This makes me extremely uncomfortable".
44.In her report dated 5 May 2023, Dr Rastogi assessed Class 3 for travel and provided the following reasons:
“Moderate impairment as he avoids going out and drives locally and if needed with a family member only. He relies on his fiancée to drive to places.”
45.Dr Rastogi noted that the appellant would, “drive locally to shops and to familiar places and only with a family member always”.
46.In his report dated 14 April 2024, Associate Professor Kaplan assessed the appellant as Class 2 for travel and provided the following reasons:
“He is able to drive locally but prefers to be taken by his fiancée. They were able to drive to the Gold Coast last year. He does not use public transport.”
47.The appellant submits that the evidence in relation to travel is that the appellant only travels locally and does so only with a support person. The surveillance report only shows that the appellant travelled locally and did so with a support person. The appellant submits that Class 2 is inappropriate as there is at least a moderate restriction, being a Class 3.
48.The Appeal Panel accepts that the appellant appears to travel only with a support person. The Appeal Panel also accepts that the travel to Fiji in March 2020 occurred when the appellant was still working and before he was symptomatic. The Appeal Panel noted that Mr Andrew McWhirter, Venue Manager for the respondent, in his statement dated 6 July 2021 stated that the restaurant closed down because of COVID on 23 March 2020 for approximately two months. The trip to Fiji occurred before the COVID lock down and the Medical Assessor noted that it was only after the restaurant re-opened with a reduced staff that the appellant’s problems started at work.
49.The Appeal Panel accepts that the trip to Fifi should not have been taken into account in the assessment of any impairment in travel caused by an injury that postdated that travel. The other reasons provided by the Medical Assessor, particularly the fact that he could not use public transport on his own, were more consistent with a Class 3 rating.
50.Based on the evidence before the Appeal Panel, and for the reasons provided by the Medical Assessor in the MAC, the Appeal Panel considered that the reasoning process was not sufficiently clear in the assessment of travel.
51.The Appeal Panel is satisfied that there is a demonstrable error in the MAC in relation to the ratings in the PIRS category of travel.
Social functioning
52.The appellant submits that the Medical Assessor has made a demonstrable error by not assessing the overwhelming evidence suggesting that the appellant has lost friendships over his social isolation and that he has suffered substantial difficulties with his relationships, including periods of separation from his partner. The appellant argues that the history taken by the Medical Assessor was inadequate and did not address the issues raised by the appellant in his statements.
53.The examples under Table 11.4 for “social functioning” in the Guidelines are:
“Class 1: No deficit, or minor deficit attributable to the normal variation in the general population: No difficulty in forming and sustaining relationships (e.g. a partner, close friendships lasting years).
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.”
54.The Medical Assessor assessed Class 1 in relation to social functioning noting:
“As described in the main body of the report, there is a minor deficit attributable to the normal variation in the general population. He is close to his fiancée and his fiancée's family. He is close to his own family as well. He has lost friendships, not because of falling out but because of reduced socialising.”
55.The Medical Assessor wrote on page 3 of the MAC under “Social activities/ADL”:
“He gets on “very very well” with his fiancée’s sister and mother. He gets on really well with his fiancée. They are stronger together. He gets on well with his sister and parents as well. He has lost his friendships and he has stopped contacting them.”
56.In his statement dated 30 June 2023, the appellant stated at [104]:
"I have effectively lost nearly all of my friends as a result of the change in my personality”. He goes on at [111] to state that his current relationship is strained. At [112] he states: "There have been periods where there have been separations as a result of frustration my fiancée feels towards how I have now become". Further at [113] he states: "I largely lost contact with most of my friends who don't bother to contact me as I never leave the home or indeed take their calls as I simply cannot bring myself to do so". At [114] he states: "Even contact with my family is now irregular". At [121] he states: “I have lost all confidence in dealing with people and almost have no contact outside my fiancée and occasionally my family.”57.In her report dated 5 May 2023, Dr Rastogi assessed Class 2 for social functioning and provided the following reasons:
“Mild impairment as he has lost friendships, there has been conflict and arguments with his partner and there is feeling of burden, lost friendships.”
58.In his report dated 14 April 2024, Associate Professor Kaplan assessed the appellant as Class 2 for social functioning and provided the following reasons:
“He has a close relationship with his fiancée, gets on well with her family and also keeps in touch with his own family, who are financially supportive. He has lost contact with friends.”
59.The Appeal Panel is satisfied that the Medical Assessor failed to take into the account the loss of friendships and that this is a matter that should be taken into account when making an assessment in this scale. The Appeal Panel was satisfied that this is a demonstrable error in the MAC in relation to the ratings in the PIRS category of social functioning.
Concentration, persistence and pace60.The appellant submitted that the Medical Assessor’s reasons for decision in this scale do not adequately address the examples in the Guidelines. The appellant argued that the fact that the appellant was able to remember details from his workplace injury and takes his medication were hardly significant matters or intellectually demanding tasks and there is no evidence that his concentration was such that he could undertake a re-training course or something of that like.
61.The appellant noted that the history given by the appellant to the Medical Assessor at page three of the MAC under “Social Activities” states: "He says he has not driven in a long time as he cannot focus". He further states: "He says he cannot focus on films for more than five minutes" and that " ... his memory is "terrible"". This is not consistent with the finding made and again was absent any explanation as to the contrast in the evidence of the appellant’s statements with his finding with no clarification as to the difference between the two positions.
62.The appellant submitted that the Medical Assessor misadvised himself by stating that the appellant can manage his own financial affairs. The only history taken in that regard is that he gets paid by Centrelink and is aware of what he gets and how it gets spent and that does not indicate that the appellant is managing the budget as opposed to his partner.
63.The examples under Table 11.5 for “concentration, persistence and pace” in the Guidelines are:
“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 (e.g. operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”
64.The Medical Assessor assessed the appellant as Class 2 for concentration, persistence and pace. In the PIRS Rating Form, the Medical Assessor wrote:
“Concentration, persistence and pace - Class 2.
As described in the main body of the report, there is mild impairment. He describes reduced concentration and memory. However, that was not apparent during the assessment. He was able to remember the details from his workplace. He remembers to take his medication. He manages his finances independently.”
65.Under “Present symptoms” the Medical Assessor noted:
“Mr Fisher says his mood is “terrible”. He says he always feels down and does not want to leave bed. He says that he spends his day in bed.”
66.Under “Social Activities /ADL” the Medical Assessor wrote:
“Mr Fisher says he cannot function properly…. He watches movies with his fiancée…. He says he cannot focus on films for more than five minutes. He watches videos on his phone and plays a game. He says his memory is “terrible”. He gets paid by Centrelink and is aware of what he gets and how it gets spent….”
67.Under “Findings on Mental State Examination” the Medical Assessor wrote:
“Mr Fisher presented as a casually dressed man who appeared adequately nourished and reasonably kempt. He maintained good eye contact within the context of videoconferencing. He did not display any psychomotor abnormality or psychic anxiety. However, he became tearful towards the end of the assessment. His mood appeared low, but his affect was reactive. His speech was normal in rate, rhythm, tone and volume. His thought content revealed that he has become fearful of employers. He has not developed any suicidal ideation. He was not suffering from any perceptual abnormalities but described both nightmares and flashbacks. He appeared to be well-orientated to time, place and person. He was able to focus throughout the assessment. His insight and judgement were intact”.
68.In his statement dated 30 June 2023, the appellant stated:
“115. In terms of my concentration., I simply have no concentration at all.
116. I become distracted very easily., even if I am reading a newspaper, I cannot read or focus for long enough or I will simply lose interest within a few lines.
117. I cannot follow what is happening on the TV as I will simply lose what has occurred.
118. I cannot retain any information. I have become forgetful.
119. Even during a conversation, I tend to zone out and will not know what the other person has said or what we were discussing”.
69.In her report dated 5 May 2023, Dr Rastogi assessed Class 3 for concentration, persistence and pace and provided the following reasons:
“Mild impairment as he has lost friendships, there has been conflict and arguments with his partner and there is feeling of burden, lost friendships.”
70.Dr Rastogi also wrote: “Concentration – he has lapses, poor ability to concentrate and retain information and easily overwhelmed and finding it hard to multitask. He does not so his finances and is distracted easily, cannot even watch movie.”
71.In his report dated 15 April 2024, Associate Professor Kaplan assessed the appellant as Class 2 for concentration, persistence and pace and provided the following reasons:
“He is distracted, introspective, apathetic and unmotivated. He misses appointments, loses items, forgot his sister’s birthday and leaves the shopping to his fiancée. He watches television most of the day but pays little attention.”
72.However and inconsistently, in a report dated 26 March 2024 Dr Kaplan assessed Class 3 for concentration, persistence and pace and provided the same reasons for the rating, that is:
“He is distracted, introspective, apathetic and unmotivated. He misses appointments, loses items, forgot his sister’s birthday and leaves the shopping to his fiancée. He watches television most of the day but pays little attention.”
73.Dr Kaplan did not explain his change in the rating in his report of 15 April 2025 and simply commented that the surveillance information showed some disparity between the appellant’s account, even though his PIRS explanations are the same in his two reports. Dr Kaplan stated that he had altered the rating for capacity to work, whereas he had, in fact, altered two ratings, concentration, persistence and pace and employability.
74.The Appeal Panel accepts that the Medical Assessor made no reference to the appellant’s statement dated 30 June 2023 and the evidence in that statement concerning memory, focus and concentration were not addressed by the Medical Assessor in the MAC. The Medical Assessor did not explain why he did not accept this evidence, when it was significantly different to the evidence relied upon in the MAC.
75.The appellant submits that there is no evidence of the appellant’s undertaking, or being able to undertake, a retraining course or a standard course, or evidence of the appellant’s focussing on intellectually demanding tasks for periods of up to 30minutes.
76.Garling J in Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633 (“Jenkins”) at [64] held that the examples given in the tables in the Guidelines were neither the sole, nor the minimum, basis for assessment of a person’s impairment as falling within a particular class. Rather, his Honour held, at [60]:
“Those examples attempt to explore the ways in which a psychiatric condition impacts upon the activities of daily living of an individual, and their capacity to function in the areas described.”
77.While the Appeal Panel agree that the examples in the Tables are not the sole, nor the minimum, basis for assessment within a particular scale, the evidence of the appellant in his statement and the reasons provided by Dr Kaplan and Dr Rastogi in their assessments do not support a mild impairment in this scale.
78.Based on the evidence before the Appeal Panel, and for the reasons provided by the Medical Assessor in the MAC, the Appeal Panel considered that the reasoning process was not sufficiently clear in the assessment of concentration, persistence and pace.
Employability
79.The appellant submitted that the Medical Assessor's finding in relation to employability is tainted by the above findings as clearly his concentration, ability to travel and other matters which the Medical Assessor dismissed as a result of the surveillance report would have some bearing on this assessment. The appellant argued that the evidence of Dr Rastogi was that he was totally incapacitated for work. Dr Kaplan agreed that the appellant was totally incapacitated for work and only changed his view in that regard as a result of the surveillance report which was taken out of context with no further clarification sought despite the evidence of the appellant relating to those matters.
80.The examples under Table 11.6 for “employability” in the Guidelines are:
“Class 3: Moderate: Moderate impairment: cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful).
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”.
81.The Medical Assessor assessed the appellant as Class 3 for employability. In the PIRS Rating Form, the Medical Assessor wrote:
“Employability - Class 3.
There is moderate impairment. Based on his presentation, it is my opinion that he is unable to return to his pre-injury role but can work in a less stressful environment for up to 20 hours per week.”
82.In his statement dated 30 June 2023 the appellant wrote:
“122. I have been unable to work at all since my injury.
….
126. I do not know how I will go, or to leave my home let alone go to a place of employment and to undertake meaningful work.”
83.In her report dated 5 May 2023, Dr Rastogi assessed Class 5 for Adaptation and provided the following reasons:
“Total impairment as his pace is reduced and he is erratic in his functioning, remains disorganised and has cognitive defects. He has not worked since 2020 to date.”
84.Dr Rastogi noted: “He has no vocational opportunities in the open labour market given his inability to perform day-to-day activities due to severe anxiety cognitive difficulties, emotional dysregulation and poor stress coping. He is easily triggered and cannot handle any high stimulus environment or contact with people. He has very limited capacity to retrain in the foreseeable future. His ability to handle conflict and work around people is poor with risk of relapse.”
85.In his report dated 26 March 2024, Associate Professor Kaplan assessed the appellant as Class 5 for adaptation and provided the following reasons: “He cannot work in any capacity”.
86.However, a few weeks later in his report dated 15 April 2024, Associate Professor Kaplan assessed the appellant as Class 3 for adaptation and provided the following reasons: “He can work for 20 hours a week in alternate employment”. Dr Kaplan explained his change in the rating after considering the surveillance information as follows:
“While the claimant maintains a lifestyle that he shows no inclination to change, it is now accepted that he has capacity to return to pre-injury duties with another employer because (a) the unreliability of the history suggests a greater degree of coping and capacity and (b) it can be argued that returning to the workplace on a graduated basis after all this time will have a positive effect on his motivation, esteem and mood”.
87.In Centrelink Medical Certificates dated 22 June 2021 and 20 September 2021 Dr Chandron, the treating general practitioner, certified the appellant as unfit for work and unable to do any other work for eight hours or more per week. Dr Chandran also issued a number of SIRA Certificates of capacity in 2021 in which he certified the appellant as having no current work capacity.
88.The Appeal Panel considers that not only had the Medical Assessor placed excessive weight on the surveillance report without putting matters set out in the report to the appellant, but he did not properly consider the fact that the appellant has not worked at all since his injury.
89.Based on the evidence before the Appeal Panel, and for the reasons provided by the Medical Assessor in the MAC, the Appeal Panel considered that the reasoning process was not sufficiently clear in the assessment of employability. The failure to provide a sufficiently clear reasoning process is a demonstrable error.
90.The Appeal Panel, having found error, concludes that it was necessary for the appellant to undergo a further medical examination because there was insufficient evidence on which to make a determination in respect of an assessment of the five PIRS scales.
91.As noted above Medical Assessor Hong of the Appeal Panel examined the appellant on
31 March 2025. Medical Assessor Hong provided the following report:“History:
Mr Fisher is 29 and lives with his partner, sister-in-law and mother-in-law. He has not performed work since he stopped working as a chef at Fig Tree Hotel.
He briefly recounted the issues at work, which caused him to become very withdrawn, anxious and depressed, and reported that since he stopped work, his injury has not changed. He said he cannot get rid of the image of the things that happened at work and being yelled at.
He reported since being bullied at work, his symptoms are the same over time. He is still having sleep problems and is up all night, and stays in bed all day. He said he has horrendous panic attacks and would not leave home without someone in the few years, and he avoids driving. His panic attacks are once a week, similar to when seen by the MA. Initially, he said that his mental health declined after the Medical Assessor’s assessment in 2024, and on further inquiry, he said it has not really changed.
We discussed the various trips as recorded in his file, going to the club, swimming, going to the café to get a coffee, playing poker machines, the surveillance material and photographs, and also the different histories recorded in the different assessor's reports.
Symptoms:
Mr Fisher has low self-esteem and does not have motivation to do anything. He gained weight, he said around 10kg after the Medical Assessor's assessment. He has chronic anxiety and depressive symptoms and cannot enjoy things. He has nightmares. He is irritable and frustrated. He does not have suicidal ideation. Mr Fisher reported having major problems with his concentration and memory.
Treatment:
In terms of treatment, Mr Fisher is taking:
• Venlafaxine 225 mg
• Mirtazapine 7.5mg
He has been consulting Sharon Nicholls-Zancolich, psychologist regularly, usually every 2 weeks.
They discussed psychiatric admission and there is no plan for it at present.
Lifestyle activities:
In terms of his partnership, Mr Fisher said that for a while they were engaged but they called the wedding off, and they are still partners but she is not his fiancée.
Mr Fisher's partner cooks everything as he would not do it. She said she makes sure he eats. Some days he snacks and would eat all the time, and eats too much, but sometimes, he skips meals.
He said she reminded him about the assessment today, as he cannot focus, not even on watching movies.
Mr Fisher could not go near Figtree and would drive a different route to see his parents, 1 hour away, from Miranda to Albion Park, but he never goes unaccompanied. His partner drives mostly, and they may go every 2 months. We discussed the different histories in travel and being accompanied, as recorded by the previous assessors. They said he has not gone out on his own for years.
He said he does not do anything. He sleeps or lies in bed during the day, and on specific enquiry about activities in bed, he said he scrolls on his mobile phone and eats in bed. Mr Fisher watches short videos and random things that pop up. He uses Facebook and Instagram social media, generally to watch videos.
Mr Fisher reported going to Gold Coast in 2023, for his partner's work. He went with his mother and partner. He said he was in the hotel the entire time, and did not go anywhere. She said they had lunch at a café during the trip on the way driving there.
We discussed the Fiji trip, which was before his work injury. After the subject injury, he has not gone overseas and said the airport scares him, as it is too crowded.
Regarding the concert, Mr Fisher confirmed that he did not go and only his partner attended. He has not attended any concerts.
Regarding clubs and restaurants, Mr Fisher said it is rare now. In 2024, they said they went for a while and played pokies together. He went with her, usually on Wednesday night. They played the poker machines but not now. Mr Fisher does not gamble anymore and said he realized he should stop as her psychologist identified his gambling as a problem. The last time he gambled was 12 months ago.
Mr Fisher does not go fishing anymore.
He said he went swimming when he visited his parents' home in Albion Park. He and his partner went to a local bath in Cronulla in 2023, and they said only one time.
Mr Fisher spends time on his phone, sometimes hours, with breaks.
Mental state examination:
Mr Fisher was assessed by video. He was at home in bed, and I asked him to sit up for the assessment. He had a crewcut hairstyle, and a bushy beard, without overt neglect in self-care. His partner, Jasmine was present during the assessment. He gave little history spontaneously and responded to various questions without latency. He was soft-spoken and spoke in small amounts, and was not thought disordered. He did not smile or laugh. He moved intermittently. On rare occasions, his partner added to his history.
Summary
In summary, since the assessment by the Medical Assessor, Mr Fisher's psychological condition has not substantially changed and he continues to suffer from a psychiatric injury sustained at work, consistent with a major depressive disorder, he is continuing regular psychological treatment and his medications have not altered. His condition is permanent and stabilised.
In terms of self-care and personal hygiene, this has not been appealed.
In terms of social recreation, the Medical Assessor rated Class 2 and said there was mild impairment because Mr Fisher attended a concert and a holiday in Fiji. The Appeal Panel noted both of these were inaccurate history. The Medical Assessor said the surveillance showed Mr Fisher was more social than he had been stating and he was out with his fiancée every now and then and started gambling, and went to the club twice a week. Dr Kaplan also wrote he went to the club regularly. I note Mr Fisher only went to the club with his partner and they both played the poker machines but this has stopped. This was partly driven by a pathological disorder, and ceased on recommendation of his psychologist. The surveillance photo showed that he was out, but always in the company of other people. There is no evidence that he could do any recreation activity without a support person, and aside from scrolling on the phone, there is no evidence of solitary recreation activity at home either. Taken together, this is consistent with Class 3.
In terms of travel, the Medical Assessor said Mr Fisher could not go out by himself but rated Class 2. Dr Rastogi rated a Class 3 and said he would not be able to go out by himself. Dr Kaplan is the only one who rated a Class 2 on the basis that he could go out by himself, and said he drives locally but prefers to be driven, and he drove to the Gold Coast last year in his 2024 report. Mr Fisher confirmed he can drive and reported that he cannot drive or go out on foot on his own to any place, and the surveillance material is consistent with this. Therefore, this is consistent with Class 3.
In terms of social functioning, Mr Fisher reported his partnership has been strained. They called off the wedding but they are still together. He talks to his in-laws, his parents, but does not contact any friends and overall there is no evidence of any separation or domestic violence and this is consistent with Class 2.
In terms of concentration, persistence and pace, Mr Fisher would scroll mindlessly and watch short videos all day and this can be hours. He does not read books and has never been much of a reader. He does not engage in any intellectually demanding tasks. This is consistent with Class 3, and consistent with the two IMEs. The Medical Assessor rated Class 2 but did not record any intellectually demanding tasks for anywhere near 30 minutes, and may have placed excessive weight on Mr Fisher's concentration during that assessment. A Class 3 assessment is not inconsistent with my observations during the examination.
In terms of employability, Mr Fisher does not engage in any activity that could be considered work-ready and all the evidence confirmed that he spends most of the time at home and often in bed, and there is no reason to think that he could be employable in any capacity. This is consistent with Class 5.”
92.The Appeal Panel adopts the report and findings of Medical Assessor Hong.
93.The Appeal Panel assesses the appellant as Class 2 for social and recreational activities, Class 3 for travel, Class 2 for social functioning, Class 3 for concentration, persistence and pace and Class 5 for employability. The assessment of Class 2 for self care and personal hygiene was not appealed.
94.The Appeal Panel finds that the PIRS scales score 2, 3, 3, 2, 3, 5, ascending order 2, 2, 3, 3, 3, 5, median 3, aggregate 18 so that the WPI = 22%.
95.For these reasons, the Appeal Panel has determined that the MAC issued on 14 November 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:
W24588/24
Applicant:
Zachary Fisher
Respondent:
Redcape Hotel Group Pty Limited
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 Ankur Gupta 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)
1.Psychiatric and psychological disorder
7 October 2020 (deemed)
Chapter 11
excluded
22%
0%
22%
Total % WPI (the Combined Table values of all sub-totals)
22%
The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
0
3
0