Geyeregger v State of New South Wales (NSW Police Force)
[2025] NSWPICMP 184
•19 March 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Geyeregger v State of New South Wales (NSW Police Force) [2025] NSWPICMP 184 |
| APPELLANT: | Sean Geyeregger |
| RESPONDENT: | State of New South Wales (NSW Police Force) |
| APPEAL PANEL | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Graham Blom |
| DATE OF DECISION: | 19 March 2025 |
CATCHWORDS: | WORKERS COMPENSATION - The appellant submits that the Medical Assessor erred in his whole person impairment (WPI) assessment of three of the categories of the psychiatric impairment rating scale (PIRS) namely social and recreational activities, social functioning, and travel; further statement rejected; no errors found; the assessments were consistent with the evidence; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 15 November 2024 Sean Geyeregger (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Clayton Smith, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 18 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):
· the availability of additional relevant information (section 327(3)(b) of 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, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
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 one was requested, we consider that we have sufficient evidence before us to enable us to determine this appeal, for reasons which will become apparent below.
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.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a) a further statement from the appellant dated 15 November 2024.
The appellant makes no submissions regarding the requirements of s 328(3).
The appellant’s submissions focus on the alleged “inadequacies” he experienced during his assessment by the Medical Assessor in the context of a request for a re-examination.
An appeal under s 327 is not an opportunity for an application on the basis of fresh evidence tendered without any constraint and/or on the basis of no more than a panel being invited to decide an application afresh.
We refer to the decision of Justice Hoeben in Petrovic v BC ServNo 14Pty Limited and Ors [2007] NSWSC 1156 where he considered what constitutes “additional relevant information” for the purposes of s 327(3)(b) of the 1998 Act: “…‘additional relevant information’ for the purposes of s 327(3)(b) is information of a medical kind or which is directly related to the decision required to be made by the AMS. It does not include matters going to the process whereby the AMS makes his or her assessment.”
For these reasons, the Panel has determined that the “fresh evidence” sought to be admitted by the appellant is not “additional relevant evidence” pursuant to s 327 (3)(b) and is rejected.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor erred in his whole person impairment (WPI) assessment of three of the categories of the Psychiatric Impairment Rating Scale (PIRS), namely Social and recreational activities, Social functioning, and Travel.
In reply, the respondent submits that no errors were made.
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 appellant was referred to the Medical Assessor for assessment of WPI in respect of a primary psychological injury on a date of injury of 1 April 2023.
The Medical Assessor obtained the following history:
“Mr Geyeregger is a 54-year-old man, married for 20 years, with three stepsons, ages 23, 21 and 19, and one biological son, aged 13. He resides in Bundaberg, Queensland, having moved from Quakers Hill in Western Sydney in mid-December last year. He lives with his wife, who works full-time in school administration, and his youngest son. His eldest stepson also lives with them and works part-time in a warehouse.
Mr Geyeregger is currently on income support through income protection. He receives part payment from the NSW Police Force, amounting to approximately 100% of his regular take-home pay without penalty rates. He has no current employment.He developed difficulties with his mental health around June 2020, after COVID-19, with an increased workload and the onset of dread going to work, dreams about dying and death, increased alcohol intake, low mood, and feeling distant and cut off from his family. In the months before he left work, he began having intrusive thoughts about traumatic incidents, unrefreshing sleep, irrational guilt, problems concentrating, and suicidal thoughts about ending his life with a police firearm. He became increasingly disillusioned with the support provided by his employer. He was unable to continue working.
He was referred to a psychologist and psychiatrist for treatment. He has not attended any inpatient or outpatient treatment programs. He has been treated with eye movement desensitisation and reprocessing sessions.”
Present treatment was noted as follows:
“He takes desvenlafaxine 50mg. He has never been on a higher dose. He has not spoken to his psychiatrist in six months. He said they lost contact when he moved. He told me he was happy with the medications he was on and how he was progressing. He has not spoken to his psychologist for three months but previously spoke to them once a month. He told me he was trying to “self-regulate”. He takes 1mg of prazosin at night.”
Present symptoms were noted as follows:
“He described mood swings, with good days involving more activity and bad days marked by a lack of motivation and joy. On a good day, he does not wake up feeling “bad inside” with no motivation. He feels he can do things, such as going for an hour-long walk with the dog, and feels happy or comfortable participating in activities. On a bad day, he said he is shut down and questions the point of activities. He feels joyless. He has periods where he might feel good for a week. He said this week, he has probably had three good days and the rest bad days.
He is usually in bed by 11:00pm and up around 6:00am when it gets light. He sleeps through at least two to three nights per week. He may have a nightmare once a week, which wakes him in the middle of the night. These are mostly work-related. He said his sleep has improved significantly from when he first left work.
He said that he is less triggered than before. He said previously he was excessively paranoid. He said he felt like people were conspiring against him when he was working. He said he now only occasionally feels as if someone is against him. He is unlikely to run into those people or situations anymore. He said in the back of his mind that he feels that people do not have his best interests at heart. He said if he feels this is the case, he begins “catastrophic thinking”. He told me he has become better at letting things go. He denied any frank paranoia suggesting psychosis.
He is still waiting for medical discharge, perhaps in December this year. He has questioned who he is without his role as a police officer. He feels disappointed with how his career ended and as if he has failed. He was a leading senior constable at the time of his departure. He said he is happy with what he has achieved but was unhappy with some of the people he worked with. He has felt undermined and bullied with occasional paranoia about people conspiring against him, particularly related to his insurance claim and former police colleagues.
He reports improved anger management and mood stability with his current medication regimen. His temper has improved, and he does not have the anger outbursts he used to have. His relationship with his wife has improved. He stopped having suicidal thoughts several weeks after he left work and denied any suicidal thoughts since.
He reported a significant decrease in libido, approximately 50% of his baseline, attributing this partly to his wife’s perimenopause.
He denied symptoms consistent with obsessive-compulsive disorder, mania, hypomania or psychosis.”
The Medical Assessor then set out details of the impact of his injury on his social activities and activities of daily living (ADL’s) as follows:
“He might go several days without a shower, but he usually showers daily and keeps his beard trimmed. He has no need to dress up; he has always preferred to wear shorts and a T-shirt. He cooks every second night and generally eats well. His weight is stable. He helps around the house, vacuums once a week, and mows the grass.
He is most relaxed when playing a puzzle game on his phone for hours and not thinking about anything.
He enjoys panning for gold and finds the swishing motion relaxing. He returns a trailer load of dirt from panning expeditions in Gympie and does panning at home every two to three days. He said he has always had a background working in and enjoying nature, and as an ex-Army person, he was very comfortable roughing it. He said he has considered a career in geology, where he is unlikely to have to work with people and where he may be able to do mining or exploratory fieldwork.
He can attend social venues, although he feels hypervigilant and has difficulty enjoying himself. He socialises approximately once a month. He is reluctant to socialise more. He has no interest in meeting new people. They have moved away from their social network in Sydney. He travelled to Sydney for his son’s twenty-first. He drove with his wife and his youngest son, dropped them at the Gold Coast Airport, and then drove on to Sydney alone. They stayed in a hotel room at Rouse Hill, adjacent to The Fiddler Hotel, and on a Saturday night, had a party for their son at The Fiddler Hotel. He stayed for two nights, Friday and Saturday night. For dinner, he caught up with a friend on Friday night at the Returned Services League club.
His relationship with his wife and family is stable, but his libido is reduced.
Regarding the move from Sydney to Bundaberg, his wife packed the house and organised the storage. Mr Geyeregger hired the truck, packed it, and drove it on two trips from Sydney to Bundaberg alone. While living in Sydney, he attended the gym twice weekly and is considering a local gym membership if it is not too crowded. His social activity is mostly with his wife’s family, who live in Bundaberg. He has moved away from his social network in Sydney. They usually socialise at someone’s house. They might play cricket with their children and share a meal. His wife’s niece lives on the other side of town. They have met at the beach with the children several times, approximately once a month. His wife has made some acquaintances at work. She has not reconnected with local friends. He has friends he calls once a fortnight, a good friend in Melbourne, and friends from work in Sydney who will call him regularly. He has a friend from the police force planning to visit at the end of the year. His mother, his sister and her husband will visit around Christmas. His family is based in Melbourne.
He used to enjoy camping when the children were younger. This reduced as the children got older. They might eat out once a month. He has taken his youngest child fishing a few times, about once a fortnight to once a month. His wife walks the dog with him occasionally. He said apart from mealtimes, they don’t spend much time together as a family. He enjoys listening to music and watching television. He plays brain teasers, such as sudoku and card games, where his mind is engaged but passive. He has not been reading lately as he has not found anything that interests him. He is researching things online. He naps during the day occasionally. He shares responsibility for the household administration with his wife 50/50 and manages his insurance matters.
He said he is a confident driver and drives without problems. He drove the removal truck alone from Sydney. He had to make two trips, 16 hours with breaks each way. He has travelled to Gympie alone several times to go gold fossicking, three visits since December. He travelled to Toowoomba with his wife for a funeral. They have been to Toowoomba three times since the funeral.
He enjoys metal detecting at local parks, reading manuals, and studying online material. He is interested in studying geology and doing a degree. He has always had an interest in rocks and minerals. He has been researching what is available; for example, the University of New South Wales has an online degree, and he hopes to start in the next few years. He is considering a Certificate in Earth Sciences but has not made any arrangements to start. He is still in the research stage.”
Findings on examination were reported as follows:
“Mr Geyeregger presented on time by teleconference. He was casually dressed. His self-care was adequate. He was pleasant and cooperative. His affect was reactive. His speech was of normal rate, tone and volume. He described his mood as fluctuating. His thought content reflected trauma themes, including sensitivity to reminders of his employment with the police force.
He described avoidance of trauma-related cues. There were no depressive themes. He described chronic hypervigilance and hyperarousal, including heightened startle response. He denied suicidal thoughts. There was no evidence of psychotic symptoms.
He was alert and oriented, and I estimated his intelligence to be in the average range. His cognition was not formally tested. There were no overt cognitive deficits during the interview. His insight and judgement were intact, and he claimed to adhere to the prescribed treatment.”
The Medical Assessor then summarised the injuries and diagnoses as follows:
“Mr Geyeregger is a 54-year-old man previously employed by the NSW Police Force as a senior constable. He began to develop symptoms consistent with post-traumatic stress disorder around 2020. His symptoms deteriorated throughout his employment as he was overwhelmed by repeated exposure to trauma. He lost the capacity to work as a police officer.
He meets DSM-5 criteria for post-traumatic stress disorder. The diagnosis of post-traumatic stress disorder was made based on repeated exposure to incidents meeting criterion A for post-traumatic stress disorder. Consistent with post-traumatic stress disorder, he developed repeated disturbing memories, thoughts and images of critical incidents, repeated disturbing dreams, felt upset when reminded of the incidents or the police force in general, developed physical anxiety symptoms when reminded of traumatic incidents, avoided thoughts about activities which reminded him of traumatic incidents, lost interest in previously enjoyed activities, felt distant and cut-off from others, developed emotional numbing and a depressed and angry mood, as well as difficulty sleeping, impaired concentration and hypervigilance.
He no longer meets the criteria for a DSM-5 major depressive disorder. He has adjusted to his new circumstances and the loss of his career as a police officer. He has settled into a slower pace and a quieter environment in Bundaberg and has re-engaged with solitary hobbies and interests.”
The Medical Assessor assessed 7% WPI to which he added 1% for the effects of treatment, a total of 8% WPI.
He then set out a summary of the material he had before him.
Relevant to the issues in dispute, he said:
” His section 78 notice dated 7 August 2024 noted differing opinions regarding whole-person impairment, noting an assessment by Dr Grama assessing whole person at 8% on 23 July 2024 and an assessment of 22% whole-person impairment based on the report of Dr Nagesh dated 21 February 2024.
In his report dated 21 February 2024, Dr Abishek Nagesh, Independent Medical Examiner and Psychiatrist, detailed the circumstances of the injury, diagnosing post-traumatic stress disorder and major depressive disorder, assessing whole person impairment at 22%, with self-care and personal hygiene in class 2, social and recreational activities at class 3, travel at class 2, social and relationship functioning at class 3, concentration, persistence and pace at class 3, and employability at class 5. His current function in social/recreational activities and social relationships is inconsistent with a class 3 rating. I found no restriction on his ability to travel independently.
In his report dated 19 June 2024, Dr Sergiu Grama detailed the circumstances of the injury. No significant inconsistencies were noted. He diagnosed post-traumatic stress disorder and major depressive disorder. He noted alcohol use disorder was in remission. He noted improvement with treatment. He noted a previous diagnosis of adjustment disorder in 2010, referred to in a Certificate of Capacity dated 6 April 2023, concluding that the behavioural and emotional difficulties were time-limited and caused by stress and that the condition had not persisted over time. Therefore, no deduction was required for a pre-existing condition. He assessed his whole person impairment at 19%, with self-care and personal hygiene at class 2, social and recreational activities at class 3, travel at class 2, social functioning at class 2, concentration, persistence and pace at class 3, and employability at class 5.
In a further supplementary report dated 23 July 2024, he was asked to reconsider his assessment in light of information that Mr Geyeregger reported visiting local relatives, revising his assessment of social and recreational activities to class 2 instead of class 3. He adjusted his assessment of concentration, persistence and pace based on Mr Geyeregger’s ability to concentrate for a long period and the fact that he can become involved in planning and executing the complex activity of moving interstate, revising his assessment into a class 2, mild impairment. His final assessment of whole-person impairment was 8%.”
DISCUSSION
The appellant’s submissions are mostly predicated upon his supplementary statement which, for reasons referred to above, we have rejected.
The appellant also makes frequent reference to the report of Dr Nagesh dated 21 February 2024, prepared some eight months prior to the Medical Assessor’s assessment.
At that time, Dr Nagesh assessed a Class 3 for social and recreational activities and said:
“My rationale is the claimant has become completely socially withdrawn. He does not attend any social events which include barbecue parties, dinner parties, weddings, birthday parties and anniversaries. He has lost interest in his hobbies and does not partake in any recreational activities.”
In assessing a Class 2 the Medical Assessor said:
“Mild impairment. He occasionally attends social events but has been restricted in part by anxiety and in part by moving from Sydney to Bundaberg, removing him from his regular social network. He regularly participates in recreational activities such as fishing, gold panning and metal detecting. He maintains an active interest in these activities. He eats out with his family regularly and can attend special occasions as required. There is a degree of uneasiness and hypervigilance in social settings.”
This assessment is consistent with the history obtained by the Medical Assessor.
Clause 1.6 of the Guidelines notes that the task of a Medical Assessor is to assess a claimant as they present on the day of the assessment.
There is nothing in the history obtained by the Medical Assessor that accords with the descriptor for a Class 3 rating.
Indeed, in our view, the evidence points strongly to a Class 2 rating as assessed by the Medical Assessor.
Of particular note is the Medical Assessor’s comment that he “regularly participates in recreational activities such as fishing, gold panning and metal detecting” and that he “maintains an active interest in these activities.”
Moreover, the Medical Assessor noted: “He eats out with his family regularly and can attend special occasions as required.”
For these reasons, we agree with the Medical Assessor’s assessment in this category since it is consistent with the evidence.
Turning next to the category of social functioning, once again, the appellant’s submissions focus on the supplementary statement and the report of Dr Nagesh.
For example, the appellant submits:
“As is evidenced in the report of Dr Nagesh, the appellant’s relationship with his wife was severely strained to the point that they were on the verge of separation. He has also isolated and lost contact with all of his children and lost contact with all his friends.”
The Medical Assessor assessed a Class 2 rating and said: “Mild impairment. There has been a reduction in his libido and intimacy. His mental state has strained his relationship with his partner and family at times.”
The descriptor for a Class 2 rating reads: “Mild impairment: Existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.”
The descriptor for a Class 3 reads: “Moderate impairment: Previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”
Although the reasons regarding his assessment in this category are fairly sparse, in the body of the MAC the Medical Assessor noted:
“They have moved away from their social network in Sydney. He travelled to Sydney for his son’s twenty-first. He drove with his wife and his youngest son, dropped them at the Gold Coast Airport, and then drove on to Sydney alone. They stayed in a hotel room at Rouse Hill, adjacent to The Fiddler Hotel, and on a Saturday night, had a party for their son at The Fiddler Hotel. He stayed for two nights, Friday and Saturday night. For dinner, he caught up with a friend on Friday night at the Returned Services League club.”
Based on this history, it can hardly be said that the appellant has “lost contact with all of his children and lost contact with all his friends.”
Whilst there may have been some strain in his relationship with his wife in the past, clearly this situation has now improved.
The submission referred to in paragraph 43 above is a ‘selective’ extract from the report of
Dr Nagesh. He did say that “the appellant’s relationship with his wife was severely strained to the point that they were on the verge of separation” but added: “However, things have been getting better between them.”As the Medical Assessor observed: “His current function in social/recreational activities and social relationships is inconsistent with a class 3 rating.”
Again, for these reasons, we see no error by the Medical Assessor in this category because it is consistent with the evidence.
Turning finally to the category of Travel, the appellant’s submissions are frankly without foundation at all for reasons that follow.
To begin with, the Medical Assessor assessed a Class 1 rating and said:
“There is no significant deficit in his capacity to travel. He is able to drive long distances alone and to new places alone. He is a confident driver.”
In the body of the MAC he also noted:
“Regarding the move from Sydney to Bundaberg, his wife packed the house and organised the storage. Mr Geyeregger hired the truck, packed it, and drove it on two trips from Sydney to Bundaberg alone… He said he is a confident driver and drives without problems. He drove the removal truck alone from Sydney. He had to make two trips, 16 hours with breaks each way. He has travelled to Gympie alone several times to go gold fossicking, three visits since December. He travelled to Toowoomba with his wife for a funeral. They have been to Toowoomba three times since the funeral.”
Dr Nagesh assessed a Class 2 rating and said:
“My rationale is that the claimant can walk to familiar places within a radius of 2-4 kms. The claimant cannot travel to faraway and unfamiliar places without his wife and children.”
He added that he needed “a support person” to travel to such faraway and unfamiliar places.
How Dr Nagesh arrived at this assessment is odd to say the least, given that the appellant had apparently moved to Bundaberg “from Quakers Hill in Western Sydney in mid-December last year” according to the Medical Assessor.
The appellant submits that the Medical Assessor’s assessment was factually incorrect, apparently based on the suggestion by Dr Stewart to move away from past associations and “triggering” events.
That may well be so, but it doesn’t detract from the fact that he is able to drive long distances (Bundaberg to Sydney being approximately 16 hours) because, as he said, he is a confident driver.
We also note that the appellant, after gold panning, “returns a trailer load of dirt in Gympie.”
In addition, as the Medical Assessor noted regarding the move to Bundaberg: “Mr Geyeregger hired the truck, packed it, and drove it on two trips from Sydney to Bundaberg alone.”
This activity would require significant concentration, mental focus and stamina which again does not suggest any significant impairment in this category.
It should also be noted that the descriptors, or examples, describing each class of impairment in the various categories, are examples only and provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected. (See Jenkins v Ambulance Service of New South Wales [2015] NSWSC 887).
A Medical Assessor is able to make assessments based on his expertise and experience that other rational minds might disagree with.
Moreover, mere disagreement about the level of impairment is not sufficient to demonstrate error.
In our view, the Medical Assessor’s assessment in this category was consistent with the evidence, and we see no error by him.
For these reasons, the Appeal Panel has determined that the MAC issued on 18 October 2024 should be confirmed.
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