Gilmour v State of NSW (Ambulance Service of NSW); State of NSW (Ambulance Service of NSW) v Gilmour
[2025] NSWPICMP 408
•10 June 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Gilmour v State of NSW (Ambulance Service of NSW); State of NSW (Ambulance Service of NSW) v Gilmour [2025] NSWPICMP 408 |
| APPELLANT: | Benjamin Gilmour |
| RESPONDENT: | State of NSW (Ambulance Service of NSW) |
| APPELLANT: | State of NSW (Ambulance Service of NSW) |
| RESPONDENT: | Benjamin Gilmour |
| APPEAL PANEL | |
| MEMBER: | John Isaksen |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | John Baker |
| DATE OF DECISION: | 10 June 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); psychological injury; worker claims demonstrable errors in assessment of four of the psychiatric impairment rating scale (PIRS) categories (self care and personal hygiene, social and recreational activities, travel, and concentration, persistence and pace); employer claims demonstrable error in category of employability; reference to Ferguson v State of NSW, and Jenkins v Ambulance Service of NSW; Held – demonstrable error in assessment of travel; demonstrable error in assessment of employability; MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 20 February 2025 Benjamin Gilmour 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
21 January 2025.Mr Gilmour 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.
On 25 March 2025 the State of New South Wales (Ambulance Service) lodged an Application to Appeal Against the Decision of a Medical Assessor.
The Ambulance Service contends that the MAC contains a demonstrable error.
The delegate is satisfied that at least one ground of appeal has been made out in each application. 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).
RELEVANT FACTUAL BACKGROUND
Mr Gilmour commenced employment with the Ambulance Service as a paramedic in 1996. He attended many traumatic incidents in the course of his employment with the Ambulance Service.
Mr Gilmour ceased work with the Ambulance Service on 7 November 2021 and has not worked with the Ambulance Service since then. The deemed date of injury for this claim is
7 November 2021.Mr Gilmour has made a claim for a lump sum payment for 24% whole person impairment (WPI) as a result of the injury sustained on 7 November 2021, based upon an assessment made by A/Prof Robertson in a report dated 15 January 2024.
A/Prof Robertson diagnoses Mr Gilmour as having chronic post-traumatic stress disorder. He makes the following assessments under the psychiatric impairment rating scale (PIRS):
Self care and personal hygiene moderate impairment Class 3
Social and recreational activities moderate impairment Class 3
Travel mild impairment Class 2
Social relationship functioning moderate impairment Class 3
Concentration, persistence and pace moderate impairment Class 3
Employability totally impaired Class 5
The Ambulance Service obtained an opinion from Dr Davies, psychiatrist, who has provided reports dated 16 May 2024 and 18 June 2024 in response to the claim made by Mr Gilmour for WPI. Dr Davies diagnoses Mr Gilmour as having post-traumatic stress disorder.
Dr Davies initially made an assessment of 22% WPI in his report dated 16 May 2024. However, additional material was then provided by the Ambulance Service to Dr Davies, including details of a presentation which Mr Gilmour gave at the Sydney Writers Festival in May 2023 and the completion by Mr Gilmour of a four-month course to obtain a Certificate of Psychedelic Assisted Therapy in 2022.
Dr Davies then amended his assessment of WPI to 7% in his report dated 18 June 2024, which was based upon the following:
Self-care and personal hygiene mild impairment Class 2
Social and recreational activities mild impairment Class 2
Travel mild impairment Class 2
Social relationship functioning moderate impairment Class 3
Concentration, persistence and Pace no impairment Class 1
Employability moderate impairment Class 3
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 even though the Appeal Panel has found a demonstrable error, there was enough material available to make a 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.
Mr Gilmour seeks to admit the following evidence:
(a) further statement from himself dated 4 February 2025.
Mr Gilmour submits that the evidence is relevant because there are factual errors contained in the MAC which leads to the MAC containing a demonstrable error and being based upon incorrect criteria. Mr Gilmour contends that the following factual errors are contained in the MAC:
(a) that the presentation which Mr Gilmour gave at the Sydney Writers Festival in May 2023 lasted more than 50 minutes and involved him answering questions. Mr Gilmour states that this was not a ‘question and answer’ event, and the presentation lasted 35 minutes;
(b) that there is no ongoing intimate relationship between Mr Gilmour and Sophie (as referred to on page 4 of the MAC), and
(c) that the journey which Mr Gilmour made with his children in 2024 from Bangalow to Currumbin Wildlife Sanctuary was not 2 hours and 45 minutes each way, but more likely 50 minutes for each trip. Furthermore, the journey was undertaken with a support person.
The appellant submits that this evidence was not available, and it could not reasonably have been obtained before the appeal of the MAC, because that evidence is in response to factual errors in MAC.
The Ambulance Service submits that the further statement from Mr Gilmour should not be admitted because the matters raised therein have been addressed in the submissions made by Mr Gilmour in this appeal. The ‘fresh evidence’ is not probative and will not change the outcome of this dispute.
The Appeal Panel determines that the evidence should not be received on the appeal because the factual errors alleged by Mr Gilmour can be addressed from the material already provided to the Medical Assessor.
Mr Gilmour complains that the Medical Assessor understood that the presentation he gave at the Sydney Writers Festival in May 2023 lasted more than 50 minutes. However, the Medical Assessor acknowledges in the PIRS category for concentration, persistence and pace that Mr Gilmour’s talk lasted more than 34 minutes. Furthermore, a podcast of the talk was included in the Reply and was available to the Medical Assessor and the duration of the talk given by Mr Gilmour is about 34 minutes. The podcast does not include a ‘question and answer’ session.
The Appeal Panel accepts Mr Gilmour’s claim that the journey from Bangalow to Currumbin Wildlife Sanctuary is not 2 hours and 45 minutes each way, and it is more likely to be 50 minutes for each trip. There is no need for fresh evidence in regard to this.
The issue of whether Mr Gilmour is in an intimate relationship with Sophie, and the nature of that relationship, does not require any further evidence because Mr Gilmour does allege any error in the application of the category of social functioning, which is the category to which such a relationship would be of relevance.
The Appeal Panel accepts that the Medical Assessor has recorded comprehensive details of Mr Gilmour’s social activities and activities of daily living since he sustained injury, which are sufficient to consider and apply the six PIRS categories.
The Appeal Panel therefore concludes that the further statement from Mr Gilmour dated
4 February 2025 does not have such probative value that it would change the outcome of this dispute, and accordingly that statement will not be admitted as evidence.
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 Medical Assessor records that Mr Gilmour was repeatedly exposed to traumatic incidents in the course of his work as a paramedic. Mr Gilmour worked in a small community and often knew the people involved in those incidents. The Medical Assessor records that
Mr Gilmour ceased worked in November 2021 following his attendance at a house fire where four-year-old twin girls died. Mr Gilmour was friends with their father and stepmother.
Mr Gilmour was not able to proceed with two simultaneous paediatric resuscitations because he did not have enough equipment.The Medical Assessor records that Mr Gilmour is depressed with a pervasively low mood and diurnal variation. Mr Gilmour experiences severe anxiety when away from home.
The Medical Assessor records the following:
(a) Mr Gilmour has a Bachelor of Health Science (Paramedicine) and a Master of Public Health;
(b) Mr Gilmour has written several books and produced award-winning films;
(c) Mr Gilmour travelled to Afghanistan for two weeks in March 2023 to meet with Taliban officials and then shared information with an officer from the Department of Foreign Affairs;
(d) Mr Gilmour attended the Sydney Writers Festival in May 2023 where he talked about his experiences and answered questions, and that the full presentation lasted more than 50 minutes;
(e) Mr Gilmour enrolled in a postgraduate psychology course at James Cook University in 2022/23, but could not complete that course because he could not cope with the academic demands, he failed subjects in his first year, and he withdrew from the course in his second year, and
(f) Mr Gilmour completed a four month course in November 2022 for a Certificate of Psychedelic Assisted Therapy.
The Medical Assessor records that Mr Gilmour’s marriage failed early in 2020, which
Mr Gilmour considered was due to his wife hating the constant demands and shifts in his work as a paramedic.The Medical Assessor records that Mr Gilmour has formed “an intimate relationship” with Sophie, who is the stepmother of two girls who died in the fire which Mr Gilmour had attended.
The Medical Assessor records that Mr Gilmour said: “I don’t want to be sick; I want to test myself”, so that he forces himself into social environments occasionally, but even then this is not done without support.
The Medical Assessor records that the most extended trip which Mr Gilmour has undertaken in the last 12 months has been to drive his children to a wildlife sanctuary at Currumbin, which is a journey of approximately 2 hours and 45 minutes each way.
The Medical Assessor records that Mr Gilmour has negative alterations in cognition and mood with exaggerated negative beliefs and a tendency to catastrophise, and a persistent negative emotional state. He diagnoses Mr Gilmour as having post-traumatic stress disorder.
The Medical Assessor makes an assessment of 7% WPI. The assessment of WPI from the PIRS rating and the reasons provided for these ratings are follows:
Self care and personal hygiene - Class 2:
“Mr Gilmour lives independently. He has occasional meal preparation support from his mother and girlfriend. He hires a professional cleaner every 3-4 weeks. He showers twice weekly without prompting and daily when his children are with him. He manages shopping and other household chores, including cleaning between visits from his cleaner. He eats a limited diet but has maintained his weight. He takes regular exercise and is abstinent from alcohol.”
Social and recreational activities - Class 2:
“He has reduced his social and recreational activities. However, he takes regular bushwalks and swims in a local river. He often goes to the beach with friends or family, preferring a remote location. He socially interacts with a small group of friends. He occasionally goes out to hear live folk music but takes someone for support and often doesn’t stay for the full concert.”
Travel - Class 1:
“He is independent with local travel and can travel further afield. In 2023, he flew alone to Afghanistan, although he was met and supported at the airport on arrival. In 2024, is most extended trip was driving his children to a wildlife sanctuary in Queensland, approximately two hours and 45 minutes each way. Although he often prefers to stay at home, his ability to travel is within the normal variation in the general population.”
Social functioning - Class 2:
“He separated from his wife in 2020. However, since leaving work in 2021, he has formed a new intimate relationship with a woman he had known earlier. This relationship persists. He has close, supportive, loving relationships with his children, parents, and siblings. He has maintained two or three close friends, especially those associated with the ambulance service. He has a civil relationship with his ex-wife. I have made my determination of a mild impairment based upon his current functioning, notwithstanding the previous breakdown with his wife.”
Concentration, persistence and pace - Class 2:
“Mr Gilmour can read one or two pages of a book but prefers to listen to audiobooks. He sometimes loses focus while doing so. He can play his guitar for short periods. In 2022, he completed a certificate level course that required significant engagement. In 2023, he gave a talk at the Sydney Writers Festival that lasted more than 34 minutes, followed by questions and answers. He had some support from a journalist friend in the preparation but was not assisted during the talk. He gave a coherent and detailed history today but occasionally required redirection. There is no evidence that his capacity in this domain has deteriorated significantly over the last two years.”
Employability - Class 5:
“Mr Gilmour has lost confidence in people, but he doesn’t know well. He has significant symptoms related to PTSD, with low mood and severe anxiety. He is uncomfortable with people he doesn’t know well. He has been unable to re-engage with writing or filmmaking. For these reasons, I consider him unfit to work.”
SUBMISSIONS
Mr Gilmour refers to paragraph 1.6 of the Guidelines which states that the assessment of WPI involves clinical assessment of the worker “as they present on the day of assessment”. He submits that the references to events which occurred in 2022 and 2023, such as his attendance at the Sydney Writers Festival and attempts which he has made to return to work, would appear to be skirting these requirements and exhibits a demonstrable error and an assessment based on incorrect criteria.
Mr Gilmour submits that the evidence reveals that without the support of his mother, a friend, and his 14-year-old daughter, he would not be able to take care of his self-care and hygiene in any meaningful way, and he should therefore be placed in Class 3 for this category.
Mr Gilmour submits that there is no evidence to suggest that he is capable of engaging in activities without a support person, and he should therefore be placed in Class 3 for the category of social and recreational activities.
Mr Gilmour submits that there is no evidence to demonstrate that Class 1 is a true representation of his ability to travel. The activities relied upon by the Medical Assessor occurred a significant time ago. Both A/Prof Robertson and Dr Davies place Mr Gilmour in Class 2. Mr Gilmour submits that Class 2 is the appropriate class for the category of travel.
Mr Gilmour submits that the placement of the applicant in Class 2 for concentration, persistence and pace by the Medical Assessor is based upon attempts by Mr Gilmour to return to work in the past and not how Mr Gilmour presented on the day of his assessment. Mr Gilmour submits that all basic re-training attempts in the past have failed, and even the Medical Assessor acknowledges that Mr Gilmour can only read one or two pages of a book. He submits that he should be placed in Class 3 for concentration, persistence and pace.
The Ambulance Service refers to Parker v Select Civil Pty Ltd [2018] NSWSC 140 (Parker), wherein Harrison AsJ 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.”
The Ambulance Service also refers to Ferguson v State of New South Wales [2017] NSWSC 887 (Ferguson) wherein Campbell J 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’.”
His Honour then referred to intervention by an Appeal Panel only being justified if a selected category was glaringly improbable, that it could be demonstrated that the Medical Assessor was unaware of significant factual matters, that there was a clear misunderstanding by the Medical Assessor, or that there was an unsupportable reasoning process. Otherwise, the Ambulance Service submits that the assessment is very much a matter for the Medical Assessor.
The Ambulance Service submits that there is no suggestion that Mr Gilmour is frequently missing his meals or relying on formal support to achieve minimum levels of hygiene and nutrition, so that he does not reach Class 3 for self care and personal hygiene.
The Ambulance Service submits that it was open to the Medical Assessor to place
Mr Gilmour in class 2 for social and recreational activities because the Medical Assessor records that Mr Gilmour goes to the gym twice a week with his brother.The Ambulance Service submits that Mr Gilmour has demonstrated an ability to travel outside his local area without a support person, such as his journey to Afghanistan in 2023, and it was therefore open to the Medical Assessor to place Mr Gilmour in Class 1 for travel.
The Ambulance Service submits that there is no evidence that Mr Gilmour’s capacity for concentration, persistence and pace has significantly deteriorated over the last two years. The audio recording of the talk given by Mr Gilmour at the Sydney Writers Festival in May 2023 lasted more than 34 minutes, and this is noted in the MAC. The Ambulance Service submits that the assessment of Class 2 for concentration, persistence and pace should be maintained.
In regard to the separate appeal filed by the Ambulance Service, the Service submits that
Mr Gilmour’s functioning does not demonstrate that he cannot work at all, and that his functioning is representative of Class 2 or Class 3. The Ambulance Service refers to events such as Mr Gilmour travelling to Afghanistan and completing a certificate level course in support of this submission.Mr Gilmour responds that the Medical Assessor is in agreement with A/Prof Robertson that Class 5 is the appropriate category for Employability. He submits that incidents in 2022 and 2023, which Dr Davies was directed to after his initial assessment of total incapacity, pre-dates the current claim for WPI by a significant period of time. Mr Gilmour submits that there is no contemporaneous evidence provided by the Ambulance Service outside of the supplementary report from Dr Davies, which is a report which relies on dated incidents.
Mr Gilmour also submits that the appeal by the Ambulance Service was not filed within the time required, which does cause prejudice to him because he could not seek further evidence in response to that appeal.
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.
Before addressing those PIRS categories which are challenged by Mr Gilmour, it is necessary to respond to the submission made by Mr Gilmour that the Medical Assessor is “in contravention of paragraph 1.6” of the Guidelines, or “skirting” the requirements of paragraph 1.6 of the Guidelines, by relying upon incidents which occurred two to three years prior to the assessment.
The Appeal Panel is well aware of that part of paragraph 1.6 which is referred to by
Mr Gilmour. However, paragraph 1.6 goes on to state that there must also be a “taking account of the claimant’s relevant medical history and all available relevant medical information” when the assessment is made.The Medical Assessor undertakes a detailed review of the available medical evidence. He reviews the clinical records from Bangalow Medical Centre and observes that those notes suggest that Mr Gilmour’s condition has improved a little over time. There are no reports in evidence from Mr Gilmour’s treating psychiatrist, Dr Siefken, although there are two reports from that doctor during 2023 which are referred to in the reports of Dr Davies.
The Medical Assessor considers the findings and conclusions reached by A/Prof Robertson and Dr Davies, and he compares those findings and conclusions with his own examination of Mr Gilmour. The Medical Assessor notes that A/Prof Robertson does not mention the journey which Mr Gilmour made to Afghanistan in 2023, the presentation which Mr Gilmor made to the Sydney Writers Festival in 2023, the certificate course which Mr Gilmour undertook, or the trip which he made with his children to Currumbin Wildlife Sanctuary (although that trip might have occurred after Mr Gilmour saw A/Prof Robertson in January 2024).
The Appeal Panel considers that the Medical Assessor cannot ignore relevant events and activities which have occurred in the worker’s life subsequent to the injury sustained by that worker, even if some of those events occurred two years before the assessment.
The Appeal Panel therefore rejects the submission made by Mr Gilmour that the Medical Assessor is “in contravention of paragraph 1.6 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment.”
Mr Gilmour contends that there a four PIRS categories in the MAC which contain a demonstrable error. The respondent challenges a separate category of employability.
In Jenkins v Ambulance Service of NSW [2015] NSWSC 633 (Jenkins), Garling J said at [73]:
“…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.”
In Parker v Select Civil Pty Ltd [2018] NSWSC 140 (Parker), Harrison AsJ said at [66]:
““In relation to the Classes of PIRS there has to be more than a difference of opinion on a subject about reasonable minds may differ to establish error in the statutory sense.”
However, in Wetere v Coles Supermarkets Australia Pty Ltd [2025] NSWSC 474 (Wetere), Scmidt AJ emphasised at [38] the need for a Medical Assessor or Appeal Panel to explain why it considered that the relevant consequences of a psychiatric injury be brought within one category rather than another.
The Appeal Panel will firstly address the four categories which are challenged by Mr Gilmour.
Self care and personal hygiene
The Medical Assessor places Mr Gilmour in class 2 for self care and personal hygiene, which is set out in the Guidelines as follows:
“Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on takeaway food.”
Mr Gilmour contends that his placement in class 2 is a demonstrable error, and that he should be in class 3 for moderate impairment:
“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 Medical Assessor has recorded thorough details of Mr Gilmour’s activities of daily living. Mr Gilmour lives on his own in a cabin in northern New South Wales. His friend Sophie and his mother only provide meals occasionally to him. Otherwise, Mr Gilmour is able to shop and has a limited diet.
The Medical Assessor records that Mr Gilmour showers twice a week without prompting. He records that Mr Gilmour’s children regularly visit him for one or two days, and A/Prof Robertson records that Mr Gilmour is involved in their care.
While visits from his mother, his 14-year-old daughter and Sophie might assist Mr Gilmour in his self care, the information obtained by the Medical Assessor indicates that Mr Gilmour can live independently. The difficulties which Mr Gilmour does have in living on his own do not extend to the submission which he has advanced that he would not be able to take care of himself and his personal hygiene without such support. He does not reach class 3 whereby he cannot live independently without regular support.
The Medical Assessor has addressed all the relevant issues in this category and the details which he has obtained are consistent with the descriptor for a class 2 rating. The Appeal Panel can therefore find no demonstrable error or application of incorrect criteria in this PIRS category.
Social and recreational activities
The Medical Assessor places Mr Gilmour in class 2 for social and recreational activities, which is set out in the Guidelines as follows:
“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).”
Mr Gilmour submits that he should be placed in class 3 for social and recreational activities, which is as follows:
“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 Medical Assessor records that Mr Gilmour will occasionally force himself into social environments, such as attending a folk music gathering or a function at someone’s home. However, he also records that Mr Gilmour would not go to such a social setting without support.
Nonetheless, the Medical Assessor identifies other social and recreational activities which
Mr Gilmour engages in which do not require support. He records that Mr Gilmour goes to the gym twice a week with his brother, and they attend for about 20 minutes and choose a quiet time of the day. However, the Medical Assessor does not conclude that it is essential for
Mr Gilmour’s brother to provide support for this activity.The Medical Assessor records that Mr Gilmour has bushwalks and beach outings with his children but does not record that he requires a support person to do these activities. The Medical Assessor also records that Mr Gilmour socialises with a small group of friends. This is in contrast to the conclusion reached by A/prof Robertson that Mr Gilmour is “socially isolated.”
The Medical Assessor records that Mr Gilmour does engage in the recreational activities of bushwalking and swimming in the local river, even though it is on his own.
The Appeal Panel acknowledges that the details recorded by the Medical Assessor in regard to the social and recreational activities undertaken by Mr Gilmour can result in him falling into either class 2 or class 3 for this category. The Appeal Panel accepts from a review of the MAC that the Medical Assessor has exercised his clinical judgment and has considered the reasons as to why A/Prof Robertson has placed Mr Gilmour in class 3.
The Appeal Panel needs to be satisfied that the placement of Mr Gilmour in class 2 for social and recreational activities category is glaringly improbable or is based on an unsupportable reasoning process for there to be found a demonstrable error in the MAC (Ferguson). The information obtained and the conclusion reached by the Medical Assessor in regard to this particular category, which has been referred to by this Appeal Panel, does not reach the level of glaring improbability or an unsupportable reasoning process to allow for a finding of a demonstrable error or assessment based on incorrect criteria. Mr Gilmour has different recreational activities with different people, he enjoys solitary recreational activity without prompting or support person, and he actively engages in recreational activities appropriate for his age, gender and culture.
There is therefore to be no change in the placement of Mr Gilmour in class 2 for the category of social and recreational activities.
Travel
The Medical Assessor places Mr Gilmour in class 1 for travel, which is set out in the Guidelines as follows:
“No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision.”
Mr Gilmour submits that he should be placed in class 2 for travel, which is as follows:
“Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.”
The allocation of class 1 by the Medical Assessor appears to be primarily based upon the ability of Mr Gilmour to fly on his own to Afghanistan in 2023 and to drive for 2 hours and 45 minutes each way to take his children to a wildlife sanctuary in Queensland. The Medical Assessor concludes that Mr Gilmour “can travel alone to more distant venues”.
The Appeal Panel accepts that flying into Afghanistan in 2023 would be daunting for most people. However, Mr Gilmour had undertaken trips to Afghanistan prior to his cessation of work due to his psychiatric injury. The Appeal Panel accepts that this was a journey which
Mr Gilmour would have been familiar with. Furthermore, Mr Gilmour tells the Medical Assessor that Afghanistan was safe and no longer at war in April 2023.The Appeal Panel accepts that there has been an error made by the Medical Assessor in stating that the journey from Mr Gilmour’s residence to Currumbin is about 2 hours and 45 minutes each way. The distance between Federal and Currumbin is about 80km and is likely to take about 50 minutes because the journey is mostly on a dual carriage highway.
The Medical Assessor otherwise records that Mr Gilmour is independent with local travel.
The Appeal Panel concludes that there is a demonstrable error in the application of class 1 for travel because the Medical Assessor was unaware that Mr Gilmour had travelled to Afghanistan in the past and there was a clear misunderstanding by the Medical Assessor of the time to travel between Mr Gilmour’s residence and Currumbin.
The Appeal Panel considers that Mr Gilmour meets the descriptor for class 2 for travel.
Concentration, persistence and pace
The Medical Assessor places Mr Gilmour in class 2 for concentration, persistence and pace, which is set out in the Guidelines as follows:
“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.”
Mr Gilmour submits that he should be placed in class 3 for concentration, persistence and pace, which is as follows:
“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 Appeal Panel considers that the information obtained and relied upon by the Medical Assessor fits tightly within the descriptor for class 2 for this category.
Mr Gilmour has been able to undertake and complete a tertiary course, being the Certificate of Psychedelic Assisted Therapy. The descriptor for class 2 includes undertaking a basic retraining course or a standard course at a slower pace. Mr Gilmour appears to fit well within this descriptor, especially when the Medical Assessor concludes this was more than a basic course.
The Medical Assessor refers to the 78 hours of face to face or webinar-based tuition and 43 hours of additional reading and self-study required for this course, which is reproduced from the report of Dr Davies dated 18 June 2024. Mr Gilmour provides details of how he coped when undertaking that course in his second statement dated 23 August 2024, but he does not dispute the amount of hours of attendance and study which have been listed by
Dr Davies, and which was required of Mr Gilmour to complete that course.The Appeal Panel has had the opportunity of listening to the podcast of the talk given by
Mr Gilmour at the Sydney Writers Festival in May 2023. There is no ‘question and answer’ session, despite that being recorded by the Medical Assessor.However, the presentation lasts about 34 minutes. The talk given by Mr Gilmour is meaningful and coherent and is sustained for over half an hour. The Appeal Panel agrees with the conclusion reached by the Medical Assessor that this talk was an intellectually demanding task, which fits within class 2 for concentration, persistence and pace, and does not extend into class 3.
The Appeal Panel is aware that the talk was given in May 2023, which is over 18 months before Mr Gilmour was examined by the Medical Assessor. However, the Medical Assessor concludes from his review of the available evidence and his clinical judgment that there “is no evidence that his capacity in this domain has deteriorated significantly over the last two years.” Furthermore, the opinion from A/Prof Robertson in regard to WPI, which is relied upon by Mr Gilmour, is provided just over six months after the talk given by Mr Gilmour.
The Appeal Panel can therefore find no demonstrable error or application of incorrect criteria in this PIRS category.
Employability
The Medical Assessor places Mr Gilmour in class 5 for employability, which is “Totally impaired: Cannot work at all.”
The Ambulance Service submits that Mr Gilmour should be placed in class 2 (mild impairment) or class 3 (moderate impairment).
The reasons given by the Medical Assessor for placing Mr Gilmour in class 5 for employability is: “Given the severity of his symptoms, his loss of confidence and his discomfort with people whom he doesn’t know well, it is unlikely that he could cope in a work environment.”
Mr Gilmour states in his second statement dated 23 August 2024 that he engaged with Northern Occ Rehab during 2023 to assist him with rehabilitation and return to work possibilities. He states that efforts to enrol in a post-grad course at James Cook University and engagement in social justice creative work was “fraught with problems and failures”.
The Appeal Panel considers that not being able to cope in a work environment is different to being not able to work at all. The Medical Assessor regards the presentation which
Mr Gilmour gave at the Sydney Writers Festival to be “a work-like activity”. Mr Gilmour was able to complete the four month course for the Certificate of Psychedelic Assisted Therapy. He has been able to travel to Afghanistan and then share information from that trip with the Department of Foreign Affairs upon his return.The Appeal Panel considers that there are skills and aptitude required for these events which make it glaringly improbable that Mr Gilmour cannot work at all. There is therefore a demonstrable error in this part of the MAC.
The Appeal Panel considers that the best fit for Mr Gilmour is in 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.”
Mr Gilmour retains skills in writing given his ability to prepare for the talk at the Sydney Writers Festival and despite his pace being reduced and needing the assistance of
Mr Lowenstein to create and edit the piece which he presented. That indicates to the Appeal Panel that Mr Gilmour has at least some capacity for employability, although not to the extent suggested by the Ambulance Service.The Appeal Panel finds that Mr Gilmour is best placed in class 4 for employability.
The Appeal Panel notes that Mr Gilmour objects to the Ambulance Service being allowed to appeal out of time because he is now prejudiced by not being able to provide further evidence on this particular category which is now challenged by the Ambulance Service.
However, it is not usually the situation that a respondent is allowed to provide further evidence on appeal. An appeal is decided on the material made available by the parties.
Mr Gilmour’s submissions have been considered by the Appeal Panel and reasons have been provided as to why there is an error in the MAC in the category of employability.
Conclusion
For the reasons set out above, the Appeal Panel has determined that the MAC issued on
21 January 2025 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.The Appeal Panel confirms that the following PIRS categories now apply:
Self care and personal hygiene Class 2
Social and recreational activities Class 2
Travel Class 2
Social functioning Class 2
Concentration, persistence and pace Class 2
Employability Class 4
Score Median Class
2 2 2 2 2 4 2
Aggregate Score Impairment Total
+2 +2 +2 +2 +2 +4 14
Pre-existing deduction clause: nil
Treatment effect clause – nil
Final WPI = 7%.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W28552/24 |
Applicant: | Benjamin Gilmour |
Respondent: | State of NSW (Ambulance Service of 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 Douglas Andrews and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| 1.Psychological | 7/11/21 deemed | Chapter 11 Pp 54-60 | n/a | 7% | Nil | 7% |
| Total % WPI (the Combined Table values of all sub-totals) | 7% | |||||
0
5
0