Freight on Board International Services Pty Ltd v Cumming

DETERMINATION OF APPEAL PANEL
CITATION:	Freight On Board International Services Pty Ltd v Cumming [2025] NSWPICMP 784
APPELLANT:	Freight On Board International Services Pty Ltd
RESPONDENT:	Christopher Cumming
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Ash Takyar
DATE OF DECISION:	10 October 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appeal by employer against 18% whole person impairment (WPI) assessment for psychological injury; whether Medical Assessor (MA) erred in rating for social and recreational activities, social functioning, or employability; Held – error found in failure by MA to explain how a class 4 rating in social and recreational activity had been given where some of claimant’s conduct (a trip to Adelaide to watch a cricket test) was appropriate to a class 3 rating; claimant re-examined; MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 27 February 2025 Freight On Board International Services Pty Ltd, the appellant employer lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Douglas Andrews, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 31 January 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The 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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5). “WPI” is reference to whole person impairment. “Baseline WPI" is a reference to the total WPI assessed before deduction or modification pursuant to the relevant legislative authority.

RELEVANT FACTUAL BACKGROUND

On 17 December 2024 this matter was referred to the Medical Assessor for a WPI of psychological/psychiatric disorder caused by injury on 17 August 2023 (deemed).
Mr Cumming was employed by the appellant employer in early 2019 initially as a driver, but with added roles including logistics because the appellant employer was a small company.
He was dismissed following a number of incidents with his manager in 2023.
The Medical Assessor found 18% WPI.

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 the worker should undergo a further medical examination because the Medical Assessor fell into error, as explained below. Medical Assessor Takyar of the Panel examined Mr Cumming on
30 July 2025.

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.

Further medical examination

Medical Assessor Takyar of the Appeal Panel conducted an examination of the worker on
30 July 2025 and reported to the Appeal Panel.

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

The Medical Assessor noted:[1]
[1] Appeal papers page 22.
“Mr Cumming has a varied career. He has worked as an IT technician in an
advertising agency, for Land Rover and Cellar Master. He briefly ran his own rigging
business.
He had a 16-year relationship that ended in May 2024 directly due to his work injury.
His partner left, citing Mr Cumming’s behaviour as a reason, and returned to live in
New Zealand. He has some email contact with her but believes there is no hope of
reconciliation.
Social activities/ADL:
Because of his disturbed sleep patterns, Mr Cumming does not have a regular time
to get out of bed.
When he rises, he often watches the news on television and, if the weather is fine,
goes for a walk, usually to the local shops.
He regularly visits his mother, who lives in an aged care facility because of her
dementia.
He watches television shows such as Gogglebox or sports events such as cricket or
football.
He moved into a one-bedroom apartment in Zetland in June 2024, where he lives
alone. He is still setting up his apartment and organising his possessions. He and his
ex-partner had owned a five-bedroom house in Botany, and he is sorting out his
possessions as they don’t fit in his new abode.
He manages his hygiene, showering and brushing his teeth daily. He takes less care
with appearance but said, ‘I tidy up if I have to go somewhere.’
…
Before becoming unwell, he had a group of friends that he and his partner socialised
with regularly. He met his father each week at South’s rugby club. He attended
friends' homes or had them to his for barbecues. He enjoyed going to sports events.
He regularly travelled to Canada or the United States to snowboard. He enjoyed
cooking as a hobby.
He is much less socially active. He has retained one friend who visited him just
before Christmas. This friend lives a one-hour drive away and has family and work
obligations, making it difficult for them to keep up. He still goes to the local club with
his father once a fortnight, and while there, he socialises with his father’s friends. He
went out with his father for a seafood meal on Boxing Day.
..
He walks or drives locally independently. He said he has no problems with travel
because he ‘feels safe in the car.’ He flew to Adelaide for an Adelaide cricket test
match early in 2024. He said he didn’t feel the travelling would be a problem but that
he couldn’t afford these sorts of outings.
He separated from his partner in May 2024 because she didn’t want to cope with his
moods and behaviour. He remains close to his mother and father. He has retained
one friend but lost others because of social disengagement and discord. He is estranged from his sister since his work injury. They have argued, and he believes
she no longer respects him because he isn’t working. He visited his cousin at
Christmas, but they had a falling out and are no longer in contact. He has not formed
any new friendships.
…
He has been certified fit to work 20 hours a week. He has upgraded his profiles on
Seek and LinkedIn. He would like to find work as a trainee customs broker but
considers it unlikely because it requires a 5-year mentorship, and he believes his age
will go against him. Otherwise, he feels he could run a warehouse or drive a forklift. I
asked whether he felt that 20 hours a week was realistic, and he said, ‘I won’t know
until I try.’”
In commenting on the report of Dr Aman Suman of 19 August 2024 the Medical Assessor stated:
“Comment: Mr Cumming is independent with local travel. He also flew to Adelaide early in 2024 for a cricket match. He said he was comfortable driving and felt safe
doing so. I asked him about his comfort with travelling longer distances, and he said it wouldn’t be a problem, but he couldn’t afford to do it. Not regularly travelling outside of your local area because of financial restraints is not an indication of impairment.”
Dr Suman found a moderate impairment in social functioning whereas the Medical Assessor found the impairment to be severe.
In explaining why that was, the Medical Assessor said:[2]
“Comment: Mr Cumming is permanently separated from his partner of 16 years. She left, citing his mood and behaviour related to his work injury. He has lost all but one friend, whom he sees in frequently. He remains close to his parents but is estranged from his sister, again due to the workplace injury. Similarly, he has had a falling out with and is now estranged from his cousin.”
[2] Appeal papers page 26.
In his reasons for giving a class 3 rating for social and recreational activities the Medical Assessor said:[3]
“Mr Cumming rarely engages in social or recreational activities, except for going to a Leagues club for a meal every 2 weeks with his father, whom he relies on for support. He has had a visit from only one friend on one occasion since moving into his apartment. He attended a sporting event early in 2024.”
[3] Appeal papers page 29.
As to social functioning in the Table 11.8 rating form, the Medical Assessor gave the following reasons for assessing a class 4:[4]
“He permanently separated from his partner in 2024. She returned to New Zealand, citing his moods and behaviour as the reasons. He remains close to his parents but is estranged from his sister because of discord since his work accident. He is also estranged from a cousin with whom he had a falling out at Christmas. He has lost all his friends except one, whom he sees infrequently.”
[4] Appeal papers page 29.
For the category of employability, the Medical Assessor gave a class 4 rating comment saying:[5]
“He is certified as fit to work 20 hours weekly and is planning to actively seek work. However, he has moderately severe symptoms, including avoidance and anxiety. He copes with other people poorly, especially crowds. It is untested whether he could function for 20 hours a week. Likely, he would need to work in a less stressful environment, and his attendance may be erratic. Because of the uncertainty, I have considered his impairment to be severe.”
[5] Appeal papers page 29.

SUBMISSIONS

Appellant employer

The appellant employer challenged three of the ratings given in the psychiatric impairment rating scale (PIRS). These were:
·        social and recreational activities;
·        social functioning, and
·        employability.

Social and recreational activities

We were referred to a number of the findings by the Medical Assessor, who gave a class 3 rating. These are reproduced above, but in summary are:
·        reduced capacity to experience positive emotion, but enjoyed a visit from his friend in December and more frequent visits from his parents;
·        he watches news on television when he rises;
·        he goes for a walk and regularly visits his mother in an aged care facility;
·        he watches television shows such as Gogglebox and cricket or football on television;
·        he is much less socially active than he was previously. He has one friend who visited him before Christmas. However, he still goes to the local club with his father once a fortnight and socializes while there with his father's friends. He went to a seafood meal on Boxing Day;
·        he walks or drives locally independently. He has no problems with travel. He flew to Adelaide for a cricket test in early 2024. Travelling was not a problem for him, and
·        he could travel longer distances.
The appellant employer submitted that a class 2 rating should have been ascribed in all the circumstances. It submitted that the respondent had been able to attend cricket in Adelaide in January 2024 apparently without a support person, and there was no history that he was prompted in undertaking that recreation.
The appellant employer also submitted that there was no evidence to establish that
Mr Cumming was not actively involved, or that he remained quiet and withdrawn at social and recreational events. Rather, the evidence was that Mr Cumming was able to socialise with his father's friends at the local club.

Social functioning

A class 4 rating was given for this category. The matters relied on by the appellant employer to challenge its were, again in summary:
·        Mr Cumming enjoyed a visit from a friend in December and had frequent visits with his parents;
·        he regularly visits his mother who is in an aged care facility;
·        he managed his hygiene, showering and brushing his teeth daily and “tidied up” if he had to go somewhere;
·        he is less socially active than he was previously, but he has got his one friend who visited him before Christmas and he still goes to the local club;
·        Mr Cumming also went out for a seafood meal with his father on Boxing Day;
·        the Adelaide Cricket Test in early 2024 was again mentioned, as was
Mr Cumming's comment that he did not feel that traveling long distances would be a problem;
·        he separated from his partner in May 2024 as a result of his condition, but he remains close to his mother and father, and
·        he has retained his one friend but is estranged from his sister and his cousin.
Again the relevant descriptors were kindly reproduced.
The error was said to be that the rating should have been assessed as class 3 because:
·        Mr Cumming remains close to his parents;
·        there was no history that Mr Cumming’s falling out with his cousin was as a result of his psychological condition;
·        he regularly visits his mother;
·        he goes to the club with his father once a fortnight where he socialises;
·        he went for a seafood meal with his father on Boxing Day, and
·        again, the attendance at the Adelaide Cricket Test match in 2024.

Employability

The appellant employer challenged the class 4 rating in this category on the basis that
Mr Cumming had been certified fit to work for 20 hours per week. Again, relying on the history taken by the Medical Assessor, the appellant employer submitted that Mr Cumming had upgraded his profiles in Seek and LinkedIn. He wished to find work as a Trainee Customs Broker and felt he could run a warehouse and drive a forklift.
The appellant employer noted the comment by the Medical Assessor that Mr Cumming would not know until he tried whether he could work 20 hours per week, but it submitted that a reasonable application of the relevant descriptors in the Table 11.8 rating form should have resulted in a class 3 category.
We were again kindly provided with copies of the class 3 descriptors set out in Table 11.6.
The error, as we understood the submission, consisted of the Medical Assessor not properly considering the implications of the 20-hour certification and the consequent contradiction between Mr Cumming's being fit to work five hours, four days a week, when a class 4 rating meant that he could not work for more than one or two days at a time and for less than
20 hours per fortnight.
It was also significant, it was submitted, that the Medical Assessor found that Mr Cumming would need to work in a less stressful environment.

RESPONDENT

Mr Cumming's submissions

Mr Cumming firstly referred to Allianz Australia Insurance Limited v Moo Ok Park[6] as authority for the unremarkable proposition that the reasons of an administrative decision-making should not be scrutinized overzealously.
[6] [2015] NSW SC122 at [28].
Mr Cumming then considered each submission by the appellant employer.

Social and recreational activities

Mr Cumming referred to the findings by the Medical Assessor that before becoming unwell he had a group of friends with whom he and his partner socialised regularly. He would meet his father each week at the South Rugby Club. He went to friends' homes and had them to his home for barbecues. He enjoyed going to sporting events and he regularly travelled to Canada or the United States for snowboarding. He also cooked as a hobby.
It was that contrast that was submitted by Mr Cummings that justified the assessment by the Medical Assessor.
He submitted that the process of assessment was an evaluative one which required a comparison between pre-injury activities and current post-injury capabilities.

Social functioning

The next heading Mr Cumming's referred to as "social and recreational activities," but he clearly meant to refer to the category of “social functioning.”
In that regard he referred to the findings of the Medical Assessor, and submitted that no error had been shown.

Employability

Mr Cumming submitted that the class 4 rating was open to the Medical Assessor.
He submitted that the notes of the general practitioner (GP) that Mr Cumming was fit for work at 20 hours per week was but one piece of evidence amongst the other matters in this category which the Medical Assessor was bound to consider.
Mr Cummings said that the Medical Assessor had acknowledged the GP certificate but noted the problems that he had set out in his reasons. Having regard to all the evidence that was before him and exercising his own judgment it was submitted that the Medical Assessor had not erred.

CONSIDERATION

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[7] 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.”
[7] Guides page 55.
The assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11.[8]
[8] See 11.15-11.21 at Guides p 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[9] 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[10]. 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].”
[9] [2017] NSWSC 887.
[10] [2015] NSWSC 633.

In Glenn William Parker v Select Civil Pty Ltd,[11] 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])…..”
[11] [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[12] 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).
[12] [2022] NSWSC 929.
The essential evidentiary threshold an appellant thus has to cross is to establish that his complaint is not simply a mere disagreement about which reasonable minds might differ.
The appellant employer argued that there were factual matters in the social and recreational activity category that were difficult to factor into a class 3 rating. The relevant descriptors are:
“Class 1 No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.
Class 2 Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3 Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.”
It can be seen that the activity of travelling to Adelaide in early 2024, whilst being only on the one occasion, was compatible with a class 2 rating. It does not appear that he was either prompted or that he attended with a support person. It may be that the Medical Assessor thought that on balance, descriptors not being strict criteria, that Mr Cumming’s one visit was not consequential enough to outweigh the other factors he considered. However, he did not explain his reasoning in that regard, and his failure to do so we consider to be a demonstrable error.
In the social functioning category, the relevant class descriptors are contained within Table 11.4 of the Guides:
“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.
Class 4 Severe impairment: unable to form or sustain long term relationships.
Pre-existing relationships ended (eg lost partner, close friends). Unable to care for dependants (eg own children, elderly parent).”
The appellant employer emphasised that Mr Cumming was still functioning within a moderate impairment, as evidenced by the activities it referred to. Whilst it did not mention the end of Mr Cumming’s 16-year relationship, nonetheless it argued (without further elucidation) that the activities were more typical of a class 3 rating. As a re-examination, was arranged as the result of the demonstrable error we have found, this category will also be revisited.
As to the category of employability, the relevant class descriptors are contained in Table 11.6 of the Guides:
“Class 3: 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.”
The Medical Assessor noted that Mr Cumming was certified to work for 20 hours a week. He noted that Mr Cumming was planning to actively seek work but he said it was untested whether he could in fact work for 20 hours per week. His opinion was that Mr Cumming would not be able to do so if he could work in a less stressful environment and even if he could, it was the opinion of the Medical Assessor that Mr Cumming's attendance might be erratic. This view will also be examined by Medical Assessor Takyar.
Medical Assessor Takyar’s report follows:
“1. HISTORY RELATING TO THE INJURY
Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Mr Cumming was examined over an hour and 43 minutes in person, in the PIC’s Darlinghurst rooms. He confirmed the history in the previous MAC. He had started working at Freight on Board in early 2019, ceasing in 2023, he confirmed. The circumstances in the previous MAC were discussed, which he affirmed, with problems at work developing soon after he commenced, and he described bullying and harassment at work. He said it was correct that early into his days there an image of a penis had been scratched on his car, and he raised this with his manager, but no action or support was taken. His statement identifies the person who had done this as an 18 year old male worker. Another incident took place when he was driving his truck and accidently struck a basketball ring at a house, which he reported immediately after. He was reassured this was not an issue but a week to two weeks later, he was called into a meeting with several staff present and concerns were raised of him not informing anyone of the incident, despite him doing so. Mr Cumming said that was correct.
He reported that his mental state worsened over time, and he spoke of bullying from his manager, who he said would not deal with him.
He denied any current contribution to his current symptoms from any factors unrelated to the injury events or their impacts.
Present treatment:
He currently sees general practitioner, Dr Henry Gao on a monthly basis, though consultations are more frequent during medication changes. Mr Cumming said he is prescribed the SSRI, vortioxetine, which commenced a month ago at 5mg, increasing to 10mg yesterday. He noted that when it began, he developed nausea for the first ‘one to two weeks’, with loss of appetite as a result. ‘The second fortnight, that started to, well the medication wasn’t as effective and my nausea went away’, stating that improved motivation and other positive effects seemed to have a longer duration in the first two weeks, ‘but then the second two weeks it just became erratic like before’. Yesterday, the dose was increased to 10mg after a medical case conference, and since then he has had nausea. He reported taking it around 4pm yesterday, and he plans to have something to eat and then have the medicine, as he was worried about vomiting.
The vortioxetine replaced venlafaxine XR, which commenced April 2023 at 75mg, increasing to 150mg and then 225mg, which he remained on for ‘maybe a year’, at that dose. He found it ‘good, it kinda levelled me out, but doctor said after a year, if you’re noticing any significant improvement, let’s change it, he said do you want to try something else, and I said ‘Yeah’. He described a reduction in the dose from 225mg as part of the antidepressant switch.
He sees psychologist, Samuel Chatwin ‘when he’s not on holidays, every two weeks’, which began in March or April 2024, previously seeing Dr Luke Heeps after April 2024. He said he had two or three self-funded sessions with Dr Heeps ‘but once I was sacked, I couldn’t afford it’, He described some cognitive strategies to identify unhelpful thoughts.
He has not seen a psychiatrist for treatment.
Present symptoms:
This history was obtained with respect to a period of the last two months, as an average, unless otherwise stated.
Sleep
He reported sleeping around ‘six to eight hours’ usually solidly pre-injury, falling asleep quickly mostly. In the last two months, the amount slept has averaged ‘Between zero and 12’. He said he has had no slept four times in the last two weeks, but six to eight times in the last two months. Focusing on the average in the last two months, he estimated that he sleeps ‘between five and seven’ hours a night. Mr Cumming said he needs an average of three hours a night to fall asleep, which through a circuitous history, he described in terms of rumination. Middle insomnia occurs ‘two to three’ times a night to go to the toilet, as he reported trying to keep his hydration up. Sometimes, he returns to sleep quickly ‘five times out of 10’, but on the other occasions, it can take him ‘hours’ to return to sleep due to anxious and depressive rumination.
Concentration
He reported that this is ‘Atrocious’, and it was obvious that concentration was lapsing during the examination. He said he generally can watch an entire football fan if he watches a match with his team, the West Tigers, though ‘not very often there have been times when I look at the score and I it says H2, and I don’t how it go to that’. If he watches something else that he has interest in, ‘I can generally, half an hour is probable, for example the movie, the Accountant was on and I watched… the whole thing’, with interest as he identified with themes of suffering in the movie. He said his concentration was good throughout. ‘Most of the time’ he can concentrate through a half-hour show he has interest in.
Mr Cumming said he has been reading up on dementia as both his parents have it, ‘and I am trying to help’. He can continuously read before losing focus ‘maybe ten minutes’, after which he will ‘lose my train of thought’. In conversations, he loses track of the conversation, which was observed during the interview.
Memory
This was also described as ‘atrocious’, with Mr Cumming reported that he intends to look something up but by the time he is searching on his phone, he forgets what it was that he was seeking to look up. He commented, ‘Long-term is okay, but I think because of the condition a lot of negative things come up, a negative thing will pop up from 20 years and then I will react to it’. He denied losing things, attributing this to not going out of his flat much (‘once a day, to do the shopping and I try to visit mum three times a week, my dad… I try and see him a couple times a week’).
Mood
He described his mood as ‘unstable, I lash out on… basically my sister doesn’t talk to me and I need her help to talk to my parents and I need her help, she won’t answer her phone, emails and text messages’. Mr Cumming reported feeling depressed all the time, though mood was a little better in the first two weeks of vortioxetine, though the depression remained. In the last two months, this averaged at a moderate-to-severe grade bordering on severe,’ at 2-3/10. Mr Cumming said he now cries ‘all the time, at least once a day’, which he did not do pre-injury. He felt this has been more pronounced in the last year. Of energy, he reported, ‘the medication gives me energy, but in the last year, low’. The history frequently derailed, but it could be brought back on topic; he rated it at 15% of his previous full baseline, and he naps – falling asleep watching shows or if he lies down, around three times a week. ‘It feels like five minutes but it can be anywhere from an hour to six hours’, averaging ‘two hours, but I don’t know that they’re long naps’. Enjoyment is absent (‘there’s none’), though he said that when he does something to help his father and he thanks him, he feels better. Mr Cumming rated it at 5% these days. He reported ‘feeling worthless’ when he was asked about self-harm and suicidal ideation, and on refocusing after the history derailed, he said he experiences suicidal thoughts daily, once, commencing after his dog and his partner went to New Zealand last May. He reported that he has informed his GP and psychologist of this, but has not mentioned it of late. Mr Cumming denied any acute self-harm or suicidal ideation at assessment, reporting that his parents are protective factors and he said he would not act on these thoughts. He said he hopes things will improve, particularly after the legal case ends. He said this makes him feel helpless. Amotivation was described.
Pre-injury, he ate two main meals and one smaller meal. He now eats ‘one, basically… generally dinner’, which ‘is quite large’, compared to before the injury. He has gained five kilograms from the injury but said this has fluctuated between 95-105kg. Meal enjoyment is poorer.
Anxiety
Asked about the pervasiveness, Mr Cumming replied, ‘I wouldn’t say all the time, but most of the time’, and he said people on electric bikes make him more anxious fleetingly. Anxiety has been present for ‘75 to 80’% of the time, rated at 7-8/10 overall (where 1-3 reflect low anxiety, 4-6 moderate anxiety, 7-8 high anxiety, and 9-10 severe anxiety), though he feels he can hide it well though he said others usually notice it. Along with contributing to degraded sleep, concentration and energy, he described some irritability with lowered frustration tolerance (feeling annoyed ‘way more easily’), along with anxious muscle tension in his neck along with jaw tension at times. He was not particularly restless during the examination, and he reported feeling much more fatigued.
Details of any previous or subsequent accidents, injuries or condition:
Medical History:
He said he gets hay fever, as well as a previous fracture in the little finger of his right hand (he said he fell off monkey bars in late 2024 or early 2025), and an operation is planned to correct malunion.
Psychiatric History:
He had no previous history of mental illness before the work injury, and he had not needed to take antidepressants or see a psychiatrist or psychologist pre-injury.
Family Psychiatric History:
‘My brother had mental health issues, and my parents, with the dementia.’ He was not aware of his brother’s diagnosis.
Substance Use and Forensic History:
He is a non-smoker, quitting 20 years ago.
Pre-injury, he consumed around ‘two glasses of wine… cooking dinner… three to four times a week”, which has reduced to “event-based drinks, such as if the Tigers are on the telly… five or six times a month… maybe two or three vodka soda limes’, at home.
He does not use substances, gamble or have any forensic history. He said he was caught drink-driving at 17, and he spoke of strain in his relationship with his sister – he said he has been seeking information from her for his sister, and reported that when she has not answered he said he has lashed out at her, ‘twice’, and he said she told him that because she had told him to not contact him and he had, she said she would proceed with an AVO against him, though he has not heard anything about this as yet.
Work history including previous work history if relevant:
He confirmed the work history in the previous MAC, and said his last job before the pre-injury employer was for Harry the Hirer for around two months in a rigging job. He said he finished a Diploma in 2023 (during the Melbourne F1) in Customs Broking.
Social activities/ADL:
He has been living alone in the last year in a flat he bought last year, and has no pets. He said he lives around 15 minutes from his mother and his father is around 5 minutes away, both by car. A history was obtained of his typical daily routine over the last two months. He said his waking time differs each day, between ‘five in the morning to 1 in the afternoon’, and he gets up straight away to go to the bathroom, though he said he can lie in bed for two to three hours (‘three or four times a week’), due to depressive changes, such as amotivation. He goes to the bathroom, then has something to drink like a Milo and his medication, ‘but it’s different every day’. Following this, he said he will ‘jump on the computer and open the windows’ on a nice day. He said he is not allowed to work in the last month but he would otherwise look for jobs in the area. Three times a week, he visits his mother and they may go for a drive on a nice day (30 minutes to two to three hours), and he remains until dinner to help her take her medication as she tends to when he is there. He said he then goes home from the facility she is at. He said he will drive past Maroubra beach, driving past it rather than stopping, looking at the water, and he then goes home, then will walk to the shops to get something to eat (he said he has promised his father that he will walk each day, around 1.5km or so). He said he tries to cook during the news, but often does not eat what he has cooked, stating that dinner is sporadic despite his desire to have a routine. Mr Cumming said he might watch something on TV, such as The Accountant ‘but recently I have been texting and emailing my sister to get some things sorted out with my parents – if you are looking at the last two months, I have been quite erratic with the messages to my sister’. It is ‘between 9pm and 1am’. Mr Cumming reported that he sometimes falls asleep without intending to, otherwise he goes to bed ‘around midnight, but there’s no schedule or routine’.
These days, he showers ‘when the news starts – I make sure I brush my teeth and shower’, which his psychologist has been encouraging him on. He said he does this every day, reporting that he has ‘promised my dad and Sam’, his psychologist. Mr Cumming said he brushes his teeth every day (twice a day pre-injury), and he showers ‘six to seven’ times a week, skipping it very occasionally. Mostly, he changes his clothing. ‘Cos that’s one thing that gives me [structure], doing the laundry.’
He attends to the chores ‘way less’ than before the injury, but this did transiently improve for the first two weeks on vortioxetine. Mr Cumming spoke of a previous love of cooking, which he no longer does – where cooked every day pre-injury, he now does three times a week, cooking enough for two portions. He buys groceries regularly – ‘I make sure I go, even if I don’t need groceries, that’s my exercise’. Refocused, he said he goes to the shops ‘five to six times a week’, when it is quieter, to manage anxiety – ‘early evening’.
He drives, but said he has a car accident in February, and he has been dealing with the insurer. He said he had an accident when ‘sneezed in an empty car park’, and through a very distracted history he denied any psychiatric injuries from the accident, at low speed (he said he hit a pole), nor any physical injuries. He does not use public transport due to anxiety, but could pre-injury. He drives to new places ‘rarely, rarely’, stating that he drove to do the harbour walk five months ago.
Social and Recreational Activities
Friends are seen much less compared to his pre-injury baseline; Mr Cumming reported that his social circle has shrunk since the injury – he said he has one friend left, who works in the coal mines – he has known him since childhood. His only visitor since living in his flat for one year has been this person, and he reported loss of other friendships via ‘lashing out, who wants to be around a depressed person… get ghosted’. He has no hobbies, and said he looks after his parents. Mr Cumming said he did the harbour walk ‘early in the year, I know it was summer, so it was early February. The intention was to find a walk for mum without steps’, reporting that he planned to take his mother the next week, though his sister put his mother in a home the next week. It became clear that he was not describing a social walk with others but rather a solo walk from Watson’s Bay to around Vaucluse House.
He said he last went to Adelaide ‘a couple of years ago’, for a cricket test match, but he said he has lost those friends since then. He the trip had been pre-booked, reporting that he would have cancelled but for that fact. Mr Cumming recalled, ‘I went and I wasn’t the person that they knew before. I think I hide it pretty well – everything, anxiety, depression – I don’t have contact with them anymore, they don’t talk to me’. He said this changed as he had a set of ear pods, which he gave to a friend – he struggled to recall more of this, though he said he ‘lashed out at him and I haven’t heard from him since’. He has not been again, though he said he went to a national park (Kosciusko, in early June 2025 by himself), a 4.5-5 hour drive.
Social Functioning:
He said his mother has dementia, reporting, ‘Mum is not cognitive, but from what the staff say, she loves having me there’. He described a good relationship with his father. He described significant strain in the relationship ‘since the injury, before the injury it was fine. Basically what happened is, cos I had time, I decided to help mum with her medical appointments, and found out that my sister’s partner had not been treating me well and I asked him to call me and he didn’t and I lashed out’. Of late, he said he has been lashing out via text to her ‘in the last two months, every night’, and he said the police have attended his home twice for this. He said he has accused her of elder abuse as she withholds important health information from him regarding his parents. He felt he would not be lashing out at her but for the anxiety and injury symptoms, reporting that he had never sent aggressive messages or emails in the past but he now feels he has no filter.
His relationship of 16 years ended in May 2024 – he said their dog flew to New Zealand and then his partner left. ‘But she was great, it’s not her fault’. He said things changed following the injury, with no problems in it before. They had paid off their house and were happy together. Strain developed through the impact of anxiety and depressive symptoms, particularly with depressive withdrawal and anxiety, including irritability. ‘I became unpredictable, that was when I was untreated, well, no psychologist’.
Employability:
‘I just go on Seek and put in ‘Customs Broking’, and look around. I am not approved to work… I have done job logs’, explaining that the insurer had been requiring him to apply for jobs, until yesterday, when he had a case conference. He said this had been required of him for several months. He said his doctor certified him as incapacitated yesterday, but he had been certified as having 20 hours a week of work capacity until then, despite having not worked since he stopped with the pre-injury employer. He said he was certified with these hours as ‘I wanted to work these hours, but I just couldn’t do it’.
1. FINDINGS ON PHYSICAL EXAMINATION
Mr Cumming presented as a casually dressed male of 50 years, wearing a dark jacket and pants, with long, extensively greyed dark hair. He looked tired. Mr Cumming was seated during the hour and 43 minute examination. He was mostly still, without prominent restlessness, eye contact was reduced, he was polite in manner and rapport was fair. Speech was increased in rate, particularly when anxiety was more prominent, though volume was normal. Thought stream was a little increased, while thought form was tangential often, sometimes circumstantial and refocusing was often needed at regular intervals, sometimes more than once. Mood was low, affect was restricted in range and in quality was prominent and well-communicated, consistent with his history and appropriate to context. Thought content revealed anxious and depressive themes. He denied any acute self-harm or suicidal ideation, intent or plans but reported that he has daily thoughts of ending his life, though said he has no intent or plans to act on these thoughts, citing his father and mother as protective factors. Concentration was fairly disrupted, with memory disturbance observed. Insight and judgement were intact.
2. DETAILS AND DATES OF SPECIAL INVESTIGATIONS
N/A.”

The Panel adopts the report by Medical Assessor Takyar.
We confirm that in the category of Social and Recreational Activities, Mr Cumming has a moderate impairment (class 3). He has withdrawn from friends and recreational activities with them. He no longer travels for sports events. He watches the football at home. He does not attend large social events with others or parties, and cannot do so.
In the category of Social Functioning, a severe, class 4, impairment is present –
Mr Cumming’s previously stable relationship of 16 years broke down as a result of the impacts of his work injury on his mental state through depressive and anxiety symptoms, including withdrawal, avoidance and irritability. He has lost his previous social network, which has dropped to one friend, and he described conflict with friends, reporting that he “lashed out” at them, and at his sister, who has told him that she will obtain an apprehended violence order (AVO) against him; the police have visited him twice due to what he described as texts and emails in which he has “lashed out” at her. While there are reported issues with her husband and how he has treated his parents, the conflict would not have arisen but for his mental state and lowered frustration tolerance and tendency to irritability and hyperreactivity.
While Mr Cumming was certified as fit for work until the day before he was re-examined by Medical Assessor Takyar – when he said his GP certified him unfit - the history revealed that he has not in reality been able to work since ceasing with the appellant employer, and noting his significant symptoms, this is likely due to an underlying incapacity for work. It was understood that the certification for 20 hours a week arose as he had wanted to try to find work, though he has, in reality, not been able to do so due to his mental state. We confirm the class 4 rating.
For these reasons, the Appeal Panel has determined that the MAC issued on 31 January 2024 should be confirmed.

[2025] NSWPICMP 784

10 October 2025