Flanagan v Secretary, Department of Communities and Justice (Corrective Services NSW)

DETERMINATION OF APPEAL PANEL
CITATION:	Flanagan v Secretary, Department of Communities and Justice (Corrective Services NSW) [2025] NSWPICMP 147
APPELLANT:	Brendon Flanagan
RESPONDENT:	Secretary, Department of Communities and Justice (Corrective Services NSW)
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	7 March 2025
CATCHWORDS:	WORKERS COMPENSATION - Appeal from psychiatric injury assessment of 8% whole person impairment (WPI); whether Medical Assessor (MA) gave sufficient reasons regarding five out of the six psychiatric impairment rating scale (PIRS) categories; whether fresh evidence be admitted; Held – fresh evidence rejected as having no prima facie value; Lukacevic v Coates Hire Operations Pty Limited applied; error found in social and recreational activities category as MA relied too heavily on desktop investigation without explaining why relevant evidence ignored; similarly concentration, persistence and pace category rating revoked as MA had called claimant’s credit into question without giving adequate reasons as to why she ignored relevant evidence; Bayside Council v Ware considered; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 7 November 2024 Brendon Flanagan, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Surabhi Verma, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 10 October 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
·        availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
·        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 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5). “WPI” is reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

On 6 September 2024 this matter was referred to the Medical Assessor for an assessment of WPI caused by a psychological/psychiatric disorder which occurred on a deemed date of
29 March 2023.
Mr Flanagan was employed by the respondent as an Assistant Superintendent from
April 2000 to 30 March 2023.
His work with the respondent involved escorting inmates who had significant threats made against them, and indeed bounties on them. Mr Flanagan was trained at high levels to be prepared for an ambush while walking through locations. During his posting with the custodial witness program, he did 851 escorts.
Mr Flanagan worked about 12 years in Long Bay Hospital managing mental health patients and witnessed several traumatic events including suicides, death and self-harming.
Mr Flanagan gave the Medical Assessor other examples of the trauma he had to deal with.
He underwent a mental health breakdown in 2008 in the context of work related issues. He left his wife in 2009 but they got back together a year later.
Mr Flanagan lived with his wife and his two daughters aged seven and a half and ten at the time of the assessment.
He first saw a psychologist in 2010 after he had held a gun to his head. He came under the care of Dr Jeyasingam at the St John God Hospital, whom he saw about four times.
He was then diagnosed with post-traumatic stress disorder.
The Medical Assessor found that Mr Flanagan was mildly affected in each of the categories in the psychiatric impairment rating (PIRS)[1] except the category of employability where she found Mr Flanagan to be totally unemployable. She certified an 8% WPI.
[1] As to which see below.

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 worker to undergo a further medical examination because although demonstrable error was found, the evidence was sufficient to enable the Panel to correct the MAC without such a re-examination. We acknowledge that such a re-examination was sought by the appellant.

Fresh evidence

Section 328(3) of the 1998 Act provides:
“(3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.”
The appellant submits the following:
(a)    statement by the appellant dated 4 November 2024;
(b)    short report of Dr Dangas dated 28 October 2024, and
(c)    report of Dr Chu of 25 October 2024.

Statement dated 4 November 2024

Mr Flanagan stated that during the assessment the Medical Assessor interrupted him on multiple occasions to state that he had not been answering the question. He said that each time he was interrupted he had to ask her to remind him of the question.
Mr Flanagan said that although the Medical Assessor described him as “focused, logical and attentive”, he disagreed as the interruptions and his need to have the questions repeated demonstrated the difficulties he had in staying focused.
Mr Flanagan alleged there was an error of fact when the Medical Assessor said in part of the history she took that there had been an arrest but the person of interest had managed to escape. Mr Flanagan said that in fact there had been no arrest.
Mr Flanagan referred to the traumatic experiences that the Medical Assessor had referred to in her history. He said that it seemed to him that the Medical Assessor had “glossed over some of the details and was not paying attention to me”.
Mr Flanagan pointed to the use of “etc” at the end of the paragraph to submit that it felt like the Medical Assessor was minimizing the great impact those events had had on his psyche. He thought that the Medical Assessor was being “dismissive”.
Mr Flanagan alleged another error of fact when he said that the Dry July challenge was in 2023 and not in 2024, as the Medical Assessor had stated.
Mr Flanagan appeared to cavil with the history taken by the Medical Assessor as to his changing psychiatrist after his general practitioner had told Mr Flanagan that he was not ready for the treatment recommended by Dr Jeyasingam.
He further said that his sister was not an environmental scientist but rather a Livestock Sales Representative for the pharmaceutical company ZAETAS.
Mr Flanagan noted the Medical Assessor stated that he changes clothes most days, but
Mr Flanagan stated that his wife had told him that he changes clothes once every three to five days.
Mr Flanagan also referred to the Medical Assessor's observations about his statement that he had not lost or gained significant weight. Mr Flanagan said he was not asked about his weight and had he been asked he would have said that he put on 15kg since he sustained his injury.
Mr Flanagan said that he was upset by this statement and that the Medical Assessor had erroneously rated him through relying on that history.
He also recalled telling the Medical Assessor that when his wife tasked him with cooking dinners she would come home to find that he had failed to do anything and they would end up eating cereal.
He referred to a contemporaneous report from Dr Karthik Modem regarding the significant weight gain which he said was referred to by the Medical Assessor and was accordingly an illustration of her inconsistency.
Mr Flanagan referred to the statement by the Medical Assessor that he was able to go to his friends for rock climbing at the Blue Mountains.
Mr Flanagan said that there is an implication from that statement that he regularly attended but he said that he explained to her that he used to go once a fortnight before his injury and had been about seven times since his injury.
He said it was a recreational pursuit that he “thrived in and was heavily involved in, and now I have no motivation to pursue it”.
Mr Flanagan stated that the Medical Assessor “overstates things” by saying that he socialised with his sister and frequently spoke with her on the phone.
Mr Flanagan said he did not speak to her on the phone, he messaged her on the phone every now and then.
He said he only saw her at his mother's house several times a year. He said it was not true that his sister and her family visited him, saying, “it has been that long that I cannot recall the last time one of my family members came to my house."
Mr Flanagan stated that the Medical Assessor “implies that I regularly attend the shops”.
Mr Flanagan said that he also told the Medical Assessor, that if he did go to the shops, he only went in the early hours of the morning in order to avoid crowds.
He agreed that he visited his mother in Haberfield and that he was very familiar with the area as he grew up there.
He said he would see her perhaps once every six to eight weeks.
He said that he was not asked about any near misses or accidents while driving and if he had been asked he would have told the Medical Assessor that he received two red light infringements since being diagnosed with post-traumatic stress disorder.
Mr Flanagan took issue with the Medical Assessor's opinion that the 2010 separation from his wife was not directly related to the work related incidents. He was upset because the marriage problem had been due, he said, to his symptoms from post-traumatic stress disorder. There was evidence available to that effect and “this makes me think that [the Medical Assessor] either glossed over this evidence or did not read them at all."
Mr Flanagan stated his concern that the Medical Assessor said he was focused on the evaluation. He said that he recalled on multiple occasions having to bring his focus back into line. He conceded that he did score 3 out of 3 on a 3 word repeat and 3 word recall test which he said was not difficult. He said “I believe she places too much emphasis on this as evidence of me being able to concentrate”.
He said that he was regularly distracted during the assessment and needed the Medical Assessor to “guide me back to the line of questioning on countless occasions”.
Mr Flanagan said that the Medical Assessor had made an error of fact she stated that he denied having suicidal ideas, thoughts, plans or intent.
The Medical Assessor did not raise that topic with him, Mr Flanagan stated and her comment was “false and false and misleading”. He said he had in fact had long term suicidal thoughts and continued to experience regular suicidal thoughts and ideas.
Mr Flanagan then addressed the reference by the Medical Assessor to a Lee Kelly Desktop Investigation Report on which he alleged the Medical Assessor relied heavily. Mr Flanagan stated that the author of the report had made false suggestions based on limited and unsubstantiated information.
Specifically, Mr Flanagan stated that the Medical Assessor did not ask him any questions regarding that report, but instead formed her conclusion, been “able to go out for mountaineering and is actively involved”. Mr Flanagan submitted that that indicated that the Medical Assessor was unaware of significant factual matters. Had she inquired he would have explained that he did not attend any of the events mentioned but simply shared two posts on social media, one of which was concerned with mental health, the Black Dog Institute, and the other was a casting call by a staffing campaign organised by a person who asked Mr Flanagan to share the post.
Mr Flanagan said that he did not understand why the Medical Assessor said that he was actively involved.
Mr Flanagan noted that the Medical Assessor had assessed him as having “clinically significant impairment in social, occupational and other areas of functioning.”
Mr Flanagan submitted that Dr George and Dr Modem had similar opinions, but being rated as mild in the first five PIRS categories demonstrated a contradiction between the assessment and the rating she gave. This, he said, was a demonstrable error.
Mr Flanagan said that on three occasions he continued to socialise, undertake mountaineering and meet up with his brother-in-law at his house.
Mr Flanagan stated that his brother-in-law lived in Newcastle and worked two jobs.
He said that his brother-in-law had visited his house twice since the date of injury and they had attempted rock climbing in the Blue Mountains once.
Mr Flanagan referred to his statement evidence and that of his wife to submit that he did not have a stable relationship with her.
Mr Flanagan spoke about the Medical Assessor's finding that he looked after his daughters well. He said that his wife was the primary carer for the children as he was unreliable to care for them and that evidence was referred to in his wife's statement in the final paragraph.
Mr Flanagan referred to a comment in the Concord Family Doctor's notes that was suggestive that he regularly went to the mountains to watch his friends climb. He said that in fact that reflected only one single day over the last 18 months.
The Medical Assessor did not ask any questions regarding the details of his attendance in a public auditorium. He said that his post-traumatic stress disorder was triggered well before he went into the auditorium and his wife had to forcefully direct him to leave as she could not leave the children.
Finally, Mr Flanagan noted that the Medical Assessor stated on two occasions that he had significant post-traumatic stress disorder and depressive symptoms and yet contradicted herself with the scoring she gave for his PIRS.
Mr Flanagan stated that he could not speculate on the Medical Assessor's reasoning and referred when he did so to her “Medirect biography…..” He stated that “given the numerous inconsistencies, along with false statements and unsubstantiated opinions that a volume of her report was not evidence based and her assessment did not accurately reflect his condition”. He said “after selflessly serving and protecting my community for 23 years in one of the most dangerous workplaces, this process has left me feeling utterly hopeless and worthless”.

Dr Angela Dangas

Dr Angela Dangas, clinical psychologist, issued a certificate on 28 October 2024 which stated that she had been providing Mr Flanagan with psychological support and treatment since July 2011 “and more recently since April 2023….”.
She confirmed that Mr Flanagan had experienced ongoing recurrent suicidal ideation since March 2023 and that such symptoms were documented in his therapy notes.
Secondly, she said that he had experienced significant weight gain of 15kg since March 2023. She said that he has become significantly more isolative and avoidant and his activity levels have decreased.

Dr Colin Chu

Dr Chu from Concord Family Doctors issued a certificate on 25 October 2024. He certified that Mr Flanagan had had many recurring episodes of suicidal ideation since 16 March 2023 including a presentation to the Emergency Department at Hornsby Hospital on 3 July 2024. He had just had a suicidal ideation some three weeks prior to the certificate.
Dr Chu also confirmed that there had been a significant weight gain of approximately 15kg since March 2023.

Submission as to fresh evidence

Mr Flanagan submitted that the material contained in the additional evidence was not available at the time of the examination and constituted either fresh evidence or evidence in addition pursuant to s 328(3) of the 1998 Act which we have reproduced above.
Mr Flanagan accepted that some of the statement content was in the form of a submission, but he also submitted that much of it was the only direct evidence concerning the examination.
Mr Flanagan submitted that his statement demonstrated that he had been cut off during the examination, interrupted, misunderstood or misrepresented.
Further, the statement specifically outlined matters that were not put to him. Mr Flanagan gave examples of his weight gain, the infringement notices and his level of activity together with his comments about the Lee Kelly Desktop Investigation and the other matters he had mentioned.
The statement Mr Flanagan submitted dealt with various factual matters that were erroneous, although it was accepted that many of the factual errors were established by other evidence.
The statement that was submitted had substantial primitive value and it was no different to the kind admitted in another Medical Appeal case, Tibbey v Central Coast Council.[2]
[2] [2023] NSW PIC MP 510.
Mr Flanagan also submitted that the report should be omitted, conceding that they did comment on matters that were available in other evidence, but their probative value was in the fact that they were directed to alleged erroneous findings made by the Medical Assessor.
Mr Flanagan then submitted that he had been denied procedural fairness throughout the examination as he had been denied the opportunity of explaining important matters which caused her to “erroneously view the worker as functioning better than he was”.
As an example, Mr Flanagan pointed to the failure by the Medical Assessor to allow him the opportunity to explain his position regarding suicidal ideations etc. We referred to Stead v State Government Insurance Commission,[3] regarding the test for natural justice applicable in trials.
[3] [1986] HCA 54.
Mr Flanagan noted that Dr George had assessed 24% WPI and Dr Moden 20% WPI whilst eight months later the Medical Assessor had assessed only 8% WPI.
The explanation for that difference that was submitted was “inexplicable”.
Mr Flanagan referred to the class 5 impairment for employability which he submitted was
“indirectly indicative that the [Medical Assessor] probably misunderstood, or failed to obtain, a complete and accurate history”.
In the alternative, Mr Flanagan submitted that the Medical Assessor failed to provide proper reasons.

Respondent

The respondent submitted that this evidence did not meet the requirements set out in the provision of s 328 (3) of the 1998 Act.
We were referred to Ross v Zurich Workers Compensation Insurance,[4] Petrovic v BC Serv No 14 Pty Limited and Ors[5] and Lukacevic v Coates Hire Operations Pty Limited.[6]
[4] [2002] NSWWCCPD7.
[5][2007] NSWSC 1156.
[6] [2011] NSWCA 112.
As to the content of the two medical reports, the respondent noted that the evidence was available to the appellant at the time he filed his application. The respondent then submitted that a copy of any letter of instruction to Drs Dangas and Chiu should be called for by the Panel, as the respondent said there was similarity between the two reports.

DECISION AS TO ADDITIONAL EVIDENCE

In Lukacevic Hodgson J said at [78]:
“A dispute by the worker as to the history set out in the certificate, or the observations made by the AMS, can readily be raised honestly or dishonestly, on strong or flimsy grounds. Having regard to the matters I have set out, in my opinion it would be reasonable for an AP [Appeal Panel] not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act.”

Many of Mr Flanagan’s complaints focused on the trivial, and made no difference to the history taken when viewed in its totality. For instance, it was not relevant to the Medical Assessor’s function whether there had been an arrest or not in the particular history that she took. The relevance was that Mr Flanagan was engaged in physical and dangerous work in his occupation and we are satisfied that the history taken in its totality accurately recorded the traumatic and stressful nature of Mr Flanagan’s work over 23 years. Similarly,
[7] See Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175 (Bojko) per Handley AJA at [36].
Mr Flanagan’s complaint that the Medical Assessor used the expression “etc” to minimise the effect of his many traumatic experiences demonstrates an eye too keenly attuned to error.[7] The effect of the history taken by the Medical Assessor was that Mr Flanagan was exposed to many frightening and confronting situations in the course of his employment.
Similarly, Mr Flanagan’s attempt to explain treatment options with Dr Jeyasingham and the error in the description of his sister’s occupation are not germane to the relevant facts which we are satisfied the Medical Assessor was fully aware of.
Mr Flanagan’s evidence about what he would have told the Medical Assessor had he been asked we find to be of no probative weight, and his statement regarding his weight gain, as was acknowledged in his submissions, contain more advocacy than merit.
Mr Flanagan’s explanation for the rock climbing activities he was involved in and his comments regarding contact with his sister contained again focused on the minutae of the conversation which he was trying to recall only after he had received the MAC. We find such recall to be of little weight and we note that again Mr Flanagan was expanding his evidence to give particulars of his relationship without alleging that those particulars were given to the Medical Assessor.
Mr Flanagan sought to assert that the Medical Assessor overstated his history, misunderstood him and did not appreciate matters that he thought were important, such as his receiving two red light infringements since being diagnosed with post-traumatic stress disorder. We note that this diagnosis was made in 2010. His allegation that the Medical Assessor gave false and misleading evidence as he denied the subject of suicidal thoughts had been raised, asks the reader to accept that a professional Consultant Psychiatrist would place her career and reputation in jeopardy for a workers compensation claim. The proposition only has to be expressed to be dismissed as highly improbable. Further,
Mr Flanagan’s recall of the conversations he had with the Medical Assessor was made without the help of corroborative material such as contemporaneous notes or recording. They were not recalled until some five weeks after the examination on 30 September 2024, and in the context of obvious disappointment at the result.
The same reservation applies to most of Mr Flanagan’s fresh statement. It does not in our view have sufficient prima facie probative value, in terms of its particularity, plausibility and/or independent support. The application is refused.
The reports of Dr Dangas and Dr Chu are also rejected. No explanation was given as to why they could not have been obtained before the medical assessment. Indeed such was admitted in submissions by Mr Flanagan.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.

Medical Assessment Certificate

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

Both parties made written submissions which have been considered by the Appeal Panel.

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. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.

The MAC

Mr Flanagan has challenged each of the categories within the PIRS, which we discuss below. It has accordingly been necessary to uplift a considerable amount of the facts and reasons found by the Medical Assessor.
The facts on which the findings were based were traversed when the Medical Assessor considered Mr Flanagan’s “Social activities/ADL.” She said:[8]
[8] Appeal papers pages 54-55.
“Mr Flanagan added that he showers regularly and most days he also changes his clothes. He reported no problems with his appetite and denied losing or gaining any significant weight. He said that his wife ‘tasks him with cooking but she does most of the cooking.’ He is able to do only minimal household chores like mowing the lawn and weeding in the garden but otherwise does not do significant household chores.
Mr Flanagan reported that he enjoyed rock climbing as an adult and used to do that very frequently. He is able to go out with his friends for rock climbing at Blue Mountains, but he does not feel safe. He said that he last went about 3 to 4 months back. He said that one of the friends he is mountain climbing is his wife's brother and they meet up occasionally at his home. He reported spending time in the garden and finds solace in weeding and mowing the lawn.
He said that he started withdrawing and isolating himself from 2008-2009, when his mental health started deteriorating He said that he avoids attending birthday parties; however, he attended his daughter's first flute recital in a public auditorium but had to leave when he was excessively anxious.
He is able to socialise with his sister and talks to her on the phone regularly. They often meet up at his mother's home. Her sister also comes and visits him and his family, and he engages well with them.
He leaves home to go to the local shops to get bread, milk and fruit. He also visits his mother in Haberfield which is about a 30-minute drive. He also leaves home to attend medical appointments. He denied having any near misses or any accidents.
Mr Flanagan reported that he has a good relationship with his wife who has been highly supportive. He was insightful and aware of how his mental health impacted his family and believed that his daughters were exposed to his ‘PSTD symptoms’ and vicariously exposed to them. He has been seeing Meg, Family Counsellor, as to how to help her daughters cope with his mental health. He remains in touch with his sister who lives in Carlingford and talks to her on the phone regularly. He meets up with her at his mother's home. He also visits his mother frequently and has been well supported by his family members. He has lost a few friendships.
I have noted that he separated from his wife in 2010, which he attributed to a lack of communication and interpersonal conflict. I opine that the separation in 2010 was not directly related to the work-related incidents.
Mr Flanagan said that he struggles with his attention and concentration. However, Mr Flanagan was able to provide coherent and detailed answers during the assessment. He was focused on the evaluation. He was able to recall dates, etc without any difficulty. However, he reported struggling with attention and concentration on a day-to-day basis.
He said he forgets what he needs to buy, medical appointments, etc. He now has an app, Cosy, and his wife puts things for him to address. He said that he has relied highly on his wife to remind him of day-to-day chores and tasks or that he forgets. However, during the assessment, he scored 3/3 on three-word repeat and 3/3 on three-word recall.
I have noted that he has reported distractibility, forgetfulness, etc., but that was not
evident during the assessment.
Mr Flanagan has significant PTSD and depressive symptoms along with alcohol use which will preclude him from engaging in any form of employment.
On a typical day, he gets up at varying times. He then drops his daughters to school and then comes home. He works in the garden and has lunch. He later picks up his
daughters from aftercare. He added that the kids do their age-appropriate household
chores and do their homework and he then helps his daughters in their homework if they need any help. He does not engage in many household chores and mostly spends time in the garden.”
On mental state examination, the Medical Assessor repeated that Mr Flanagan had scored 3/3 on three-word repeat and 3/3 on three-word recall. He said that he was able to focus and pay attention during the assessment. He had “insight into his condition and his judgement was intact.”
As to Mr Flanagan’s consistency of presentation, the Medical Assessor said:[9]
“Mr Flanagan’s presentation was consistent with the history given during the clinical interview, documentation received, and the mental state examination except:
·Mr Flanagan reported having significant difficulties in attention, concentration,
forgetfulness and being able to sustain attention. He also reported being distracted and being unable to complete day-to-day tasks. He reported that even for day-to-day things, he has to be reminded by his wife who often puts in information in the app and also reminds him through a messaging group. However, during the assessment, Mr Flanagan was able to give a detailed reply to the questions asked, had no difficulties in sustaining attention, concentration and even remembered the dates, etc. He was focused during the assessment. In fact, Mr Flanagan scored 3/3 on three-word repeat and 3/3 on three-word recall. He also reported that he helps his daughters do their homework at times which I assume would need some amount of cognitive abilities.”
[9] Appeal papers page 56-57.
In discussing her reasons, the Medical Assessor noted the factual investigation report by Lee Kelly dated 15 December 2023 and the involvement by Mr Flanagan with a hobby of rock climbing which “suggests” he had been the New South Wales coordinator for the Australian Climbing Instructors Association since January 2022. It also suggested that Mr Flanagan had worked as an instructor with the Australian School of Mountaineering and that he delivered a two hour long “sport climbing anchors workshop” on 4 July 2022. The Medical Assessor noted that the report stated “data appears as potentially inconsistent with assertions/claimed injury or impairment” and she noted that the report suggested that “compelled access or discovery orders” might be appropriate.[10]
[10] Appeal papers page 58.
The Medical Assessor differed from the opinion of the respondent’s medico-legal expert,
Dr Modem as she thought that a diagnosis of alcohol use disorder was also applicable. The Medical Assessor also noted Dr Modem’s assessment of 22% WPI. The Medical Assessor referred to Dr Modem’s report of 26 February 2024, and his findings regarding the social and recreational activities category of the PIRS, which she reproduced. Dr Modem had not taken the history that Mr Flanagan “continues to engage in mountaineering activities albeit at decreased frequency…”. The Medical Assessor also noted that Mr Flanagan “has attended mountaineering activities and continues to do so and has been involved in the same.” The Medical Assessor noted Dr Modem’s finding that Mr Flanagan rarely went out to events, and would not do so without a support person. Accordingly the Medical Assessor explained that she had given a “mild” rather than “moderate” rating.
The Medical Assessor again distinguished her assessment from that of Dr Modem in social functioning. She said that the category did not warrant a “moderate” rating, as Mr Flanagan enjoyed a stable relationship with his wife, with a loss of some friendships. She referred to the history that they had separated for two years and 2010 and then got back together. He and his wife continued to look after their daughters well and there had not been any involvement by Community Services. Accordingly she found a “mild” rating.
The Medical Assessor acknowledged a further report by Dr Modem of 14 March 2024 and noted that he had deducted 1/10, whereas, for reasons she outlined, she had not.
The clinical notes from Concord Family Doctors were also noted by the Medical Assessor, particularly that of 12 December 2023:
“Clinical notes by Concord Family Doctors, Patient Health Summary. I have noted that the climbing gym into two weeks, went to Blue Mountain four days ago, rock climbing occasionally, taking his two daughters to girl rides in February 2024 counselled. Visit dated 15.01.2024 mentions climb 1/52 ago. Was scared, still withdrawn. Enjoying watching friends climb. Can climb at times, 50% good/bad days.”
The Medical Assessor noted the assessment by Dr Graeme George, the medico-legal expert retained by Mr Flanagan. She acknowledged that Dr George had assessed 24% but said:
“Kindly note the PIRS rating scale and how my calculation differs in the area of self-care and personal hygiene, social and recreational activities, social functioning, and concentration, persistence and pace.”
The PIRS Table will be considered below in our discussion of the appeal.

SUBMISSIONS

Appellant

Mr Flanagan commenced his submissions by referring to the obligation by a Medical Assessor to set out his/her “actual path of reasoning.” Mr Flanagan referred to Bojko, Vegan and Wingfoot[11] in that regard. He submitted that the medical science in this case was controversial.
[11] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43.
Mr Flanagan submitted that he had not been afforded procedural fairness during the hearing as he alleged he had been denied the opportunity to explain important matters, amongst which were his weight gain, his ability to travel and the desktop investigation. He referred to Stead v State government Insurance Commission[12] in that regard. We note that these matters were part of the application to admit late documents which has been rejected. Further, the submission, with respect, is misconceived as the procedure involved pursuant to Part 7 of the 1998 Act is not concerned with the concept of natural justice in a properly conducted trial.[13]
[12] [1986] HCA 54.
[13] Wingfoot at [47-48].
Mr Flanagan submitted that the assessment of 8% WPI was “inexplicable” when compared to the assessments of Dr George and Dr Modem. The assessment regarding the category of employability (“adaption”) was said to have indicated that the Medical Assessor “probably misunderstood, or failed to obtain, a complete and accurate history.” Alternatively, it was argued, her reasoning was not adequately exposed.
Mr Flanagan then submitted that the following points constituted examples of material errors. Again, Mr Flanagan has proceeded on the assumption that his fresh statement would be admitted, and we accordingly omit Mr Flanagan’s references to that evidence. Mr Flanagan said:
·        weight gain was a significant issue for the Medical Assessor and was confirmed by Dr Modem, amongst other evidence;
·        the activity of rock climbing the Medical Assessor assumed was “almost unaffected” by the “accident.” The evidence established that was not the case stop;
·        the Medical Assessor “seems to be of the view” that therefore Mr Flanagan was actively involved in mountaineering. The evidence of the “posts” did not support that conclusion;
·        the Medical Assessor misunderstood or misperceived the extent of Mr Flanagan’s ability to travel. The class 2 rating was at odds with his more restricted ability to shop;
·        the Medical Assessor “seems to have elevated” Mr Flanagan’s social and recreational category generally. The remarks about his ability to go mountaineering, meeting up with his brother-in-law, and to travel to the auditorium were matters that should have been put to Mr Flanagan, as they were at odds with the histories taken by Dr George and “in many respects” by
Dr Modem;
·        although the Medical Assessor found that there was a stable relationship between Mr and Mrs Flanagan, a class 3 rating should have been assessed because there was a “clear breakup during the course of the injury, and
·        the Medical Assessor’s finding about Mr Flanagan’s ability to look after his daughters was “undermined” by Mrs Flanagan’s statement, and was not open to him.
Mr Flanagan further submitted that the history obtained by the Medical Assessor was not correct, as was “available to be seen” in the evidence before her.
Had the Medical Assessor “properly dealt with the matter” she would have rated each of the categories has at least class 3.

Respondent

The respondent submitted that the categories within the rating scale were examples of relevant activities only, in conformance with well-known authority which we discuss below.
The respondent referred to the Medical Assessor’s reasons with regard to each impugned assessment, kindly reproducing the relevant descriptors.
With regard to the category of self-care and personal hygiene we were referred to evidence that was before the Medical Assessor which justified, it submitted, a class 2 rating.
In the category of social and recreational activities, a general submission was made that no error had been established.
With regard to the travel category, the same submission was made, with reference to the reports of Dr George and Dr Modem.
The assessment of social functioning had been made properly, it was submitted. There was no evidence that his previous relationship was severely strained and Mr Flanagan was involved with his children.
Again, a general submission made that on the evidence before the Medical Assessor the category of concentration, persistence and pace had been appropriately assessed.
The rating given in the category of employability, the respondent noted, was consistent with that given by Dr Modem and Dr George.

DISCUSSION

The Psychiatric Impairment Rating Scale

The PIRS is established as the rating system for assessing psychiatric/psychological impairment, by virtue of Chapter 11 of the Guides. Chapter 11 sets out six categories of behaviour to be considered, each being divided into five classes, ranging in seriousness from 1 to 5. Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired.
Chapter 11.12[14] provides:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
[14] Guides page 55.
The assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11.[15]
[15] See 11.15-11.21 at Guides page 65 and Table 11.7 at Guides page 66.
The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[16] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the AMS had been glaringly improbable. His Honour found that the Panel had fallen into jurisdictional error. He said at [23]:
“By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:
‘… the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’.
24. The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
25. The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘The assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales[17]. The Appeal Panel said ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’: Appeal Panel reasons at [37].”
[16] [2017] NSWSC 887.
[17] [2015] NSWSC 633.

In Glenn William Parker v Select Civil Pty Ltd,[18] another case regarding assessment of psychiatric disorder, Harrison AsJ cited [23] of Ferguson with approval at [65]. Her Honour said at [66]:
“In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense. (Ferguson [24])…..”
[18] [2018] NSWSC 140.
In Jenkins Garling J said at [73]:
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
It is accordingly necessary for the Panel to be satisfied that the assessment by the AMS in this category was erroneous in one of the following ways (to use the reference by Campbell J in Ferguson):
(a)    if the categorisation was glaringly improbable;
(b)    if it could be demonstrated that the AMS was unaware of significant factual matters;
(c)    if a clear misunderstanding could be demonstrated; or
(d)    if an unsupportable reasoning process could be made out.
In Lancaster v Foxtel Management[19] Basten AJ noted at [88-89] that these four considerations, although not inaccurate, were not a statement of legal principles, and that care should be taken in applying the explanation in place of s 327(3) and s 328(2).
[19] [2022] NSWSC 929.
It can be noted that the respondent relied on the assessments of Dr Modem and Dr George in the two categories where the ratings given by the Medical Assessor coincided, that is to say the categories of travel and employability. It was, however unable to rely on any other assessments by the two experts as there was a considerable difference between their final assessments (20% and 24%) and that of the Medical Assessor (8%).
The dicta in Wingfoot, which also applies to the function of a Medical Assessor,[20] has been relied on by both parties. At [47] The Court (French CJ, Crennan, Bell, Gageler and Keane JJ agreeing) held that:
“47. The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions… The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.” (Authority omitted).
[20] Western Sydney Local Health District v Chan [2015] NSWSC 1968 at [13].
It can be seen therefore that reliance on other opinions that were before the Medical Assessor as a ground of appeal does not carry much weight. However, the dicta in Vegan requires that reasons be given where more than one conclusion is open and essentially
Mr Flanagan’s complaint is that the reasons given did not adequately explain the significant difference between assessment of the Medical Assessor and the expert opinions that were before her.
We accordingly now turn to examine her reasons in the impugned categories.

Self Care and Personal Hygiene

The relevant descriptors provided by Table 11.1 of the Guides for this category are:
“Class2 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.
Class3 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.”
The reasons given for the class 2 rating in this category by the Medical Assessor were:
“Mr Flanagan added that he showers regularly and most days he also changes his clothes. He reported no problems with his appetite and denied losing or gaining any significant weight. He said that his wife tasks him with cooking but she does most of the cooking. He is able to do only minimal household chores like mowing the lawn and weeding in the garden but otherwise does not do significant household chores.”
No submissions were directly made as to the adequacy of these reasons, beyond the general criticism that the Medical Assessor gave a class rating of 2, whereas Dr George assessed class 3. (Dr Modem also gave a class 2 rating). Both the Medical Assessor and
[21] Appeal papers page 420.
Dr Modem took histories that Mr Flanagan showered most days.[21] It is nothing to the point whether Mr Flanagan had lost or gained weight, and whilst other evidence might have showed a weight gain, such is unremarkable in view of the fact that he is inactive physically.
This rating is confirmed.

Social and Recreational Activities

Table 11.2 of the Guides provides:
“Class 2Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class3 Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.”
The reasons given by the Medical Assessor for her class 2 rating were:
“Mr Flanagan reported that he enjoyed rock climbing as an adult and used to do that very frequently. He is able to go out with his friends for rock climbing at Blue Mountains, but he does not feel safe. He said that the last time he went was about 3 to 4 months back. He said that one of the friends that he does mountain climbing is his wife's brother and they meet up from time to time at his home. He reported that he also spends time in the garden and finds solace in weeding and mowing the lawn.” He said that he avoids going to birthday parties; however, he attended his daughter's first flute recital in a public auditorium but had to leave when feeling excessively anxious. He said that he started withdrawing and isolating himself from 2008-2009 when his mental health started deteriorating. He also socialises with his sister and talks to her on the phone regularly and they often meet up at his mother's home. Her sister also comes and visits him and his family and he engages well with them.
I have noted the Factual Investigation Report from Lee Kelly dated 15 December 2023 which also shows that Mr Flanagan has been active in mountaineering including posting about coming hikes and about a casting call for rock climbers aged 27 to 42 years, etc. I believe that since he has been able to go out for mountaineering and is actively involved, this warrants mild impairment in this category.”
We note that Mr Flanagan did not respond to the Lee Kelly report prior to the assessment on 30 September 2024, but his histories to the Medical Assessor, Dr George and Dr Modem were consistent. The history taken by the Medical Assessor, as noted, was that he used to enjoy rock climbing, which he did “frequently.” Although he was able to go out with his friends, he did not feel safe, and he last went three to four months before the assessment. He told Dr George on 4 October 2023 that he had attempted rock climbing four times in the past six months, but suffered panic attacks because he could not remember basic safety issues and had lost confidence.[22] To Dr Modem on 26 February 2024 he said that although since 2016 he had been a rock climbing instructor with the Australian school of Mountaineering as casual employment, he had not worked a shift for over a year to 18 months previously – which we note was at a time prior to 29 March 2023 when he ceased work. Dr Modem recorded that he had been rock climbing six times in the past 12 months, and that he had to be rescued halfway up the cliff because he had forgotten his basic safety skills.[23]
[22] Appeal papers page 122.
[23] Appeal papers page 413.
We accordingly have some reservations about the Medical Assessor’s reliance on the Lee Kelly Desktop Investigation of 15 December 2023. Mr Flanagan’s evidence was not inconsistent with the histories taken that we have just referred to. He told Dr Modem that indeed he was a rock climbing instructor and it was clear that rock climbing was a hobby he enjoyed. We approach social media posts such as those on Facebook and the other apps detailed in the report with some hesitation as to their reliability. This reticence was indeed referred to by the authors of the report whose comment was reproduced by the Medical Assessor at [10c]:
“… The claimant’s Instagram and Facebook accounts appear likely to include probative material. Compelled access or discovery orders may be appropriate and warranted. Data appears as potentially inconsistent with assertions/claimed injury or impairment.”
Notwithstanding, the Medical Assessor accepted that the Desktop Investigation has established the facts that the investigator himself expressed some caution about. The other matters mentioned in the reasons of the Medical Assessor are more consonant with a moderate, class 3 rating. Mr Flanagan avoided going to birthday parties and was unable to attend an auditorium where his daughter was giving her first flute recital because he felt excessively anxious. The Medical Assessor has erred in placing so much weight on the Desktop Investigation. A class 3 rating will be substituted. The error is apparent on the evidence that was before the Medical Assessor, and there is no need to re-examine
Mr Flanagan.

Travel

We confirm the rating of class 2. The Medical Assessor stated:
“He leaves home to go to the local shops to get bread, milk and fruit. He also visits his mother in Haberfield which is about a 30-minute drive. He also leaves home to attend medical appointments. He denied having any near misses or any accidents.”
Mr Flanagan submitted that his more restricted ability to shop was relevant, an assertion we have difficulty in following, given that the category relates to travel. Both medical experts agreed that a class 2 rating was applicable. This rating is confirmed.

Social functioning

Table 11.4 of the Guides provides relevantly:
“Class2 Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Class3 Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”
The reasons given by the Medical Assessor for the class 2 rating were:
“Mr Flanagan reported that he has a good relationship with his wife who has been extremely supportive. He was insightful and is aware how his mental health impacted his family and believed that his daughters were exposed to his PTSD symptoms and vicariously exposed them. He has been seeing Meg, Family Counsellor, as to how to help her daughters cope with his mental health. He remains in touch with his sister who lives in Carlingford and talks to her on the phone regularly. He meets up with her at his mother's home. He also visits his mother frequently and has been well supported by his family members. He has lost a few friendships.
I have noted that he had separated from his wife in 2010 which he attributed to lack of communication and interpersonal conflict. I opine that the separation in 2010 was not directly related to the work-related incidents. I therefore opine that he has mild impairment in social functioning.”
Mr Flanagan relied (in somewhat cryptic terms) on the breakup of his marriage in 2010, and challenged the Medical Assessor’s finding as to his relationship with his daughters, describing the latter as being “undermined by the worker’s wife’s statement.”
Ms Suzannah Hollott, Mr Flanagan’s wife, gave a statement dated 8 August 2024, in which she gave a thorough and detailed account of her relationship with her husband, and their daughters.[24] Relevantly, she said at [74]:
“74. One of my major and continuing concerns is the impact his anger and lack of empathy has had on our children. His intolerance, angry outbursts and years of yelling at the kids have damaged his relationships. His poor role-modelling has led to our eldest struggling with managing her own anger and heightened feelings of shame. Medication has helped him somewhat but not completely. We are seeing a family therapist to help all of us with what I believe are the long-term effects on the family of his mental health.”
[24] Appeal papers 99.
It can be seen that, rather than being undermined by Mrs Flanagan’s statement, the reasons given by the Medical Assessor are confirmatory of the awareness by the Flanagans of the impact his condition has had on the children and their responsible attitude to helping them learn to cope. The descriptors for a class 2 rating anticipate such a situation of “tension and arguments”. There is no suggestion that the marital situation is severely strained, notwithstanding the rocky road that has been travelled, nor that domestic violence or institutional care has been needed for the children.
The class 2 rating is confirmed.

Concentration persistence and pace

Table 11.5. of the Guides states relevantly:
“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.
Class3 Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”
The reasons given by the Medical Assessor for her class 2 rating stated:
“Mr Flanagan said that he struggles with his attention and concentration. In fact,
Mr Flanagan was able to provide coherent and detailed answers during the assessment. He was not distracted during the assessment. He was able to recall dates, etc without any difficulty. However, he reported struggling with attention and concentration on a day-to-day basis. He said that he gets forgetful about what he needs to buy, medical appointments, etc. He now has an app, Cosy, and his wife then puts things for him to address. He said that he has been extremely reliant on his wife to remind him of day-to-day chores and tasks or else he forgets. However, during the assessment, he scored 3/3 on three-word repeat and 3/3 on three-word recall.
I have noted that he has reported distractibility and forgetfulness, etc but that was not evident during the assessment.”
As noted above, the importance of the face-to-face clinical observations is the pre-eminent consideration in the assessment process. However, it is not the only consideration, and whilst conclusions regarding a claimant’s credit may legitimately be made, it is important that negative conclusions, such as those reached by the Medical Assessor, with respect, be balanced with reasons as to why evidence to the contrary was not probative.
The three-word repeat and recall test is rudimentary and does not provide useful information in assessing concentration, persistence, and pace unless the worker is unable to complete the task, a circumstance that would be rare except in severely impaired individuals.
The Medical Assessor expressed doubts as to Mr Flanagan’s honesty, in his saying that attention and concentration were a problem for him. She based those doubts on his presentation during the examination process. She acknowledged the consistency of his assertions, and indeed referred to his stating that he struggled on a day-to-day basis, that he was forgetful regarding purchases, medical appointments, “etc.” and that he had an app, Cosy, into which his wife made entries to assist his memory. The Medical Assessor contrasted Mr Flanagan’s assertions to her that he had such problems with the fact that he provided coherent and detailed answers during the assessment, that he was able to recall dates “etc.” without difficulty. Her acknowledgement that Mr Flanagan reported that he was forgetful and able to be distracted “but that was not evident during the assessment” was a finding that she did not believe him.
In Bayside Council v Ware[25] the following appeared at [121]:
“121. What is not set out in s 319 [of the 1998 Act], as can be seen, is the power to make a finding as to a claimant’s credit. Such a power may be implied and indeed is a corollary to the resolution of the medical disputes that have to be determined. However a Medical Assessor is limited in his ability to do so. His decision must be made on the basis of his clinical judgment, experience and expertise, which was the basis on which we were invited by Mr Ware to accept the Medical Assessor’s opinion. Such a process may indeed suffice, provided the Medical Assessor properly considers the evidence before him, and gives it appropriate weight.”
[25] [2023] NSWPICMP 576.
We accept that the Medical Assessor in this case has used her clinical judgement, experience and expertise to bring Mr Flanagan’s credit into question. However, she has, with respect, failed to explain why she did not accept the evidence contained in the statement of Suzannah Hollott, to which we have earlier referred. At [73] Ms Hollott stated:
“73. [Mr Flanagan’s] poor memory has led to me taking on the burden of most of our house and family duties (I am worried he will forget to pay the electricity bill, book the kids on to that excursion, etc). I am responsible for all major decision-making as well as the day-to- day requirements for the house and finances as well as our children’s health and wellbeing, social needs and school requirements. He does assist with some domestic duties. However, most of the house improvements he has attempted to undertake over the years have been left incomplete.”
As noted, the Medical Assessor’s brief comments about the report of Dr George at [10c] of the MAC simply referred to her PIRS rating scale and asked the reader to note how her calculations differed. She made no attempt to discuss those differences. In the present context, Dr George’s reasons for rating this category as class 3 were:[26]
“CONCENTRATION, PERSISTENCE, AND PACE: He said that he could not read a book or follow a story line. He said that he had attempted to write about his rock climbing experiences, but has not done any writing for five months. He said he could not concentrate. He can lose track of conversations and he does not complete tasks on occasions. Class 3.”
[26] Appeal papers page 126.
Further, whilst the Medical Assessor made some comments regarding the reports of
Dr Modem, she did not refer to his findings in this category. Dr Modem said:[27]
“It appears that despite being able to provide some coherent information, he faced notable struggles in answering questions and maintaining focus on specific topics, indicating susceptibility to distraction and difficulties in concentration, which might stem from the overwhelming impact of his persistent psychological distress.
Furthermore, he encountered difficulties in recalling dates, names and times, indicating possible lapses in memory or cognitive functioning.
He highlighted difficulty focusing and completing tasks and a struggle with sustained attention. This difficulty is compounded by a tendency to be easily distracted, impeding his overall productivity. He starts tasks, gets distracted, and starts another, and then, as it becomes difficult, he gives up. These cognitive challenges contribute to frustration and inefficiency in his daily life.
Additionally, his limited ability to sustain attention while doing tasks such as reading and filling forms hints at attentional issues or an inability to engage with content for extended periods.
The challenges extend to cognitive functions, with reported difficulties maintaining attention and staying present in conversations. Forgetfulness has become a noticeable concern, forgetting things like milk and bread, requiring the reliance on external aids like text messages and reminders to manage and remember appointments and lists. He said he goes to the shop and sometimes calls his wife to ask what he was supposed to get. He relies on an app, Cozy, with his wife's assistance, to remind him of things. This shift in cognitive functioning further adds to the complexity of his current mental health struggles.
His wife's involvement in reminding him about appointments signifies a reliance on external support systems to navigate daily tasks. This collaboration with his wife points to a mutual recognition of his challenges and the need for additional assistance. The impact on his ability to concentrate and carry out daily tasks seems profound, causing him significant distress and affecting his interactions with his family. His sister, Mother, and wife are part of a messaging group on Apple Phones through which they support him.
The reported distractibility, memory lapses, and shortened attention span can be attributed to the overwhelming focus on intrusive memories and depressive cognitions. The psychological ramifications of these intrusive thoughts are substantial, creating significant challenges in daily functioning. The persistent intrusion of distressing memories and thoughts consumes cognitive resources, diverting attention away from current tasks and activities. This constant mental preoccupation can contribute to memory lapses and difficulties in maintaining focus, creating a substantial barrier to cognitive efficiency.”
[27] Appeal papers page 423.

Dr Modem, who was retained by the respondent, appears to have observed Mr Flanagan’s ability to provide coherent information, but also recorded the problems referred to by both
Mr and Mrs Flanagan, including use of the app “Cozy”. The Medical Assessor erred in not traversing the findings of both Dr George and Dr Modem in this category. When combined with the evidence of Ms Hollott it is difficult to accept the Medical Assessor’s finding that
Mr Flanagan was not to be believed. We are satisfied that in failing to explain why she undermined Mr Flanagan’s credit without referring to the above evidence, that the Medical Assessor made a demonstrable error. This evidence, that the Medical Assessor did not refer to, speaks for itself in our view and accordingly a re-examination was not called for. The rating for this category will be increased to class 3.
For these reasons, the Appeal Panel has determined that the MAC issued on
10 October 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:	W25311/24
Applicant:	Brendon Flanagan
Respondent:	Secretary, Department of Communities and Justice (Corrective Services NSW)

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

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

Table - whole person impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)
Psychological injury	29.3.2023 deemed	Chapter 11 and Tables therein	n/a	19%	nil	19%
Total % WPI (the Combined Table values of all sub-totals)					19%

PERSONAL INJURY COMMISSION

Table 11.8: PIRS Rating Form

Name	Brendon Flanagan	Claim reference number (if known)	W25311/24
DOB	Age at time of injury	48
Date of Injury	29.03.23 deemed	Occupation at time of injury	Assistant Superintendent
Date of Assessment	30.09.24	Marital Status before injury	Married

Psychiatric diagnoses	1. Post -Traumatic Stress Disorder	2. Major Depressive Disorder
3. Alcohol Use Disorder	4.
Psychiatric treatment	Yes
Is impairment permanent?	Yes

PIRS Category	Class	Reason for Decision
Self Care and personal hygiene	2	Mr Flanagan added that he showers regularly and most days he also changes his clothes. He reported no problems with his appetite and denied losing or gaining any significant weight. He said that his wife tasks him with cooking but she does most of the cooking. He is able to do only minimal household chores like mowing the lawn and weeding in the garden but otherwise does not do significant household chores.
Social and recreational activities	3	See MAP reasons.
Travel	2	He leaves home to go to the local shops to get bread, milk and fruit. He also visits his mother in Haberfield which is about a 30-minute drive. He also leaves home to attend medical appointments. He denied having any near misses or any accidents.
Social functioning	2	Mr Flanagan reported that he has a good relationship with his wife who has been extremely supportive. He was insightful and is aware how his mental health impacted his family and believed that his daughters were exposed to his PTSD symptoms and vicariously exposed them. He has been seeing Meg, Family Counsellor, as to how to help her daughters cope with his mental health. He remains in touch with his sister who lives in Carlingford and talks to her on the phone regularly. He meets up with her at his mother's home. He also visits his mother frequently and has been well supported by his family members. He has lost a few friendships. I have noted that he had separated from his wife in 2010 which he attributed to lack of communication and interpersonal conflict. I opine that the separation in 2010 was not directly related to the work-related incidents. I therefore opine that he has mild impairment in social functioning.
Concentration, persistence and pace	3	See MAP reasons.
Employability	5	Mr Flanagan has significant PTSD and depressive symptoms along with alcohol use which will preclude him from engaging in any form of employment. He does not have any capacity to work currently.

Score			Median Class
2	2	2	3	3	5	= 3

Aggregate Score Impairment Total %

19%

[2025] NSWPICMP 147

7 March 2025