JB Hi-Fi Group Pty Ltd v Brewer
[2025] NSWPICMP 631
•22 August 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | JB Hi-Fi Group Pty Ltd v Brewer [2025] NSWPICMP 631 |
| APPELLANT: | JB Hi-Fi Group Pty Ltd |
| RESPONDENT: | Jessica Brewer |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Professor Nicholas Glozier |
| MEDICAL ASSESSOR: | Douglas Andrews |
| DATE OF DECISION: | 22 August 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether ratings the Medical Assessor (MA) made of the respondent’s impairment in the psychiatric impairment rating scale (PIRS) categories of self-care and personal hygiene, travel, and social functioning are correct; whether MA based his assessment on correct criteria; Held – MA’s rating of respondent’s impairment in self-care and personal hygiene involved error because the MA had regard to a hypothetical situation rather than the respondent’s function in this domain at the time of assessment; Appeal Panel found no error in the MA’s ratings of the respondent’s impairment in travel and in social functioning; Appeal Panel found MA based his assessment on incorrect criteria; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 6 May 2025 JB Hi-Fi Group Pty Ltd, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Wayne Mason, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 11 April 2025.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, 4th ed
1 March 2021 (the Guidelines).
RELEVANT FACTUAL BACKGROUND
The appellant employed Jessica Brewer, the respondent, as a retail worker, commencing in June 2018. Due to the actions to which the respondent was exposed of another employee of the appellant, the respondent suffered a psychological injury.
The respondent claimed compensation for a permanent impairment from her injury. She relied on a report her solicitors received from psychiatrist Dr David Kumagaya dated
26 July 2024, who assessed the degree of the respondent’s permanent impairment from her injury is 19% whole person impairment (WPI). That assessment was done by reference to the psychiatric impairment rating scale (PIRS), as detailed in paragraphs 11.11 and 11.12 of the Guidelines. Dr Kumagaya rated the respondent’s impairment in self-care and personal hygiene as Class 2, in social and recreational activities as Class 3, in travel as Class 2, in social functioning as Class 2, in concentration, persistence and pace as Class 3, and in employability as Class 5.The appellant’s insurer by a letter dated 19 February 2024 advised the respondent that it considered the degree of her permanent impairment from her injury is not capable of assessment. It held that view because it considered she had not reached maximum medical improvement. Consequently, it did not accede to her claim for compensation. It relied on a report of psychiatrist Dr John Honey dated 2 November 2024.
On 13 February 2025 the respondent initiated proceedings in the Personal Injury Commission (Commission), seeking the Commission to determine her claim for compensation. Before that could be done the medical disputes between the parties relating to the respondent’s claim needed to be resolved and to that end a delegate of the President of the Commission issued a referral to the Medical Assessor in these terms:
“MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM Act)
the degree of permanent impairment of the worker as a result of an injury
(s319(c))
whether any proportion of permanent impairment is due to any previous injury
or pre-existing condition or abnormality, and the extent of that proportion (s319(d))
whether impairment is permanent (s319(f))
whether the degree of permanent impairment of the injured worker is fully
ascertainable (s319(g))
Date of Injury: 1/11/2018 (deemed)
Body part/s referred: Psychological/ Psychiatric disorder
Method of assessment: Whole Person Impairment.”
The Medical Assessor examined the respondent on 8 April 2025 to conduct the medical assessment. In the MAC he issued in response to that referral, he advised that the respondent had reached maximum medical improvement, by which it is apparent that he considered the respondent’s impairment is permanent and that it is fully ascertainable. He also advised that he assessed the degree of the respondent’s permanent impairment from her injury is 19% WPI. He certified that he assessed a proportion of the respondent’s permanent impairment is due to a pre-existing condition and that the extent of that proportion is 10%. The Medical Assessor consequently assessed, and certified, that he assessed the degree of the respondent’s permanent impairment from her injury is 17% WPI.
The Medical Assessor’s assessment of the respondent’s permanent impairment was done, in accordance with the Guidelines, by reference to the PIRS. The Medical Assessor’s ratings of the respondent’s impairment in the several categories of behaviour and function comprising PIRS is Class 3 for self-care and personal hygiene, Class 3 for social and recreational activities, Class 2 for travel, Class 2 for social functioning, Class 2 for concentration, persistence and pace, and Class 5 for employability.
The appellant has taken issue in its appeal against the MAC with the Medical Assessor’s ratings for the categories of self-care and personal hygiene, travel and social functioning.
In the PIRS rating form attached to the MAC the Medical Assessor provided the following reasons for rating the respondent’s impairment as Class 3 in self-care and personal hygiene:
“Ms Brewer said she showers daily and there is a component of having a shower to calm herself down. She changes her clothes regularly but relies on her husband to do the laundry and the cooking. She said her weight fluctuates and she is currently heavier. She believes she would neglect her appearance and nutrition without her husband and stated she would suicide if he was not with her. She is moderately impaired.”
Within the MAC the Medical Assessor also recorded that prior to the respondent suffering her injury she showered more than once daily.
The Medical Assessor provided the following reasons in the PIRS rating form for his rating of Class 2 for the respondent’s impairment in travel:
“Ms Brewer said she is able to drive but does not have a car. She said she would not drive after using Seroquel. She was able to drive her family from the Hunter Valley to Sydney when they visited for a wedding. She said she does not use public transport but acknowledged travelling to a Taylor Swift concert in February 2024 by train with her friend Ellen. She is able to fly back and forth to New Zealand accompanied by her husband. She is mildly impaired.”
The Medical Assessor also noted within the MAC that prior to the respondent suffering her injury she had no difficulty with driving or using public transport or air travel.
The Medical Assessor provided the following reasons in the PIRS rating form for rating the respondent’s impairment in social functioning as Class 2:
“Ms Brewer said her relationship with her husband is intact and she maintains a good relationship with family members. Her friendship group has reduced. She said her intimate relationship with her husband is non-existent because of the psychotropic medication. She is mildly impaired.”
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 respondent to undergo a further medical examination. This because the material before the Appeal Panel is sufficient for the Appeal Panel to deal with the appeal.
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor erred by rating the respondent’s impairment in self-care and personal hygiene as Class 3 rather than Class 2. The appellant submitted that the history the Medical Assessor obtained is consistent with the criteria for a Class 2 impairment. The appellant submitted that the Medical Assessor, by relying on the respondent’s belief that “she would neglect her appearance and nutrition without her husband”, considered a hypothetical scenario which is an irrelevant factor. The appellant submitted that “there is no indication that [the respondent] could not live independently”.
The appellant noted that Dr Kumagaya assessed the respondent’s impairment in self-care and personal hygiene as Class 2 and that was because he considered the respondent was able to live independently. The appellant also referred to the respondent’s evidence in a statement she signed on 11 February 2025 in which the respondent said that she is able to live independently.
The appellant submitted that the Medical Assessor erred by rating the respondent’s impairment in travel as Class 2 rather than Class 1. The appellant referred to the history the Medical Assessor obtained, which included the respondent driving her family from the Hunter Valley to Sydney, the respondent travelling to a Taylor Swift concert in February 2024 by train with a friend, and the respondent travelling between Australia and New Zealand with her husband. The appellant also referred to copies of statements from the respondent’s bank that detailed transactions the respondent made on that account in July 2024 while in Hobart. The appellant submitted that that evidence revealed that the respondent is capable of travelling to new environments. The appellant submitted that the Medical Assessor had not “suggested” that the respondent could not travel without a support person or that she otherwise required supervision to travel. The appellant submitted that the Medical Assessor did not distinguish between the respondent being accompanied by someone when travelling from the respondent needing to have a support person when travelling.
The appellant submitted that the Medical Assessor erred by rating the respondent’s impairment in social functioning as Class 2 rather than Class 1. The appellant submitted that the Medical Assessor did not record the respondent’s existing relationships are strained or that there is tension and arguments with her partner and her family members. The appellant noted that the Medical Assessor considered that the respondent’s relationship with her partner is intact and that she maintains a good relationship with family members. The appellant noted that the respondent married her partner on 8 March 2024 after sustaining her psychological injury. The appellant submitted that the respondent’s loss of some friendships was not explained by the Medical Assessor. The appellant submitted that the Medical Assessor did not indicate that the respondent’s loss of friendships is a result of the psychological injury.
In reply, the respondent submitted that she does not live independently and that she relies on her husband to provide support and that she showers as a calming mechanism. The respondent also referred to the fluctuation in her weight and her belief that she would neglect herself and likely suicide if her husband were not present. The respondent noted that the Medical Assessor had recorded that she relies on her husband for cooking.
The respondent submitted these matters were relevant to the Medical Assessor reaching his conclusion that her impairment in self-care and personal hygiene is Class 3.
The respondent submitted that consistent with paragraph 11.12 of the Guidelines “the list provided in each category is non-exhaustive” and are examples only.
The respondent submitted that the Medical Assessor was required to exercise his clinical judgment to assess her impairment based on his findings on the day of assessment, and it did not matter consequently that his rating of her impairment in self-care and personal hygiene differed from the rating Dr Kumagaya made.
The respondent submitted that the appellant relied on selected parts of her statement to support its submission that she can live independently. The respondent referred to her saying in her statement that she regularly misses meals and showers and other aspects of her self-care such as brushing her teeth and that she relies on her husband to undertake laundry, cooking and cleaning.
The respondent submitted that there is no evidence that she is capable of travelling distances by herself. The respondent submitted that the Medical Assessor took a history of her travelling only when accompanied by others. The respondent submitted that the copies of the bank statements do not establish that she travelled to Hobart alone or without a support person.
With respect to the appellant’s submissions relating to the Medical Assessor’s rating of the respondent’s impairment in social functioning, the respondent referred to the history the Medical Assessor obtained relating to her experiencing panic attacks when she tries to do the coastal walk at Coogee and to her not going on outings with her husband and not remaining in contact with her group of friends.
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.
The Appeal Panel considers that based on the history the Medical Assessor obtained, the Medical Assessor erred by rating the respondent’s impairment in self-care and personal hygiene at Class 3, and the correct rating is Class 2.
The examples provided in Table 11.1 of the Guidelines, which relates to self-care and personal hygiene, for a Class 2 rating are:
“Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.”
The examples provided for a Class 3 impairment are:
“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 history the Medical Assessor obtained was that before the respondent suffered her injury she showered more than once daily, and that subsequent to suffering her injury she showers daily partly to calm herself, she changes her clothes regularly, she has fluctuating body weight, and she relies on her husband to do laundry and cooking. The Medical Assessor also took into account the respondent’s belief that she would neglect her appearance and nutrition without her husband present and would suicide if he was not with her.
It was based on these reasons that the Medical Assessor rated the respondent’s impairment as moderate.
The Appeal Panel agrees with the appellant’s submission to the effect that it is speculative how the respondent would function in her self-care and personal hygiene if her husband were not with her. The Medical Assessors members of the Appeal Panel consider that no inference can be drawn based on the evidence before the Appeal Panel, which includes the history the Medical Assessor obtained, regarding how the respondent would function with her self-care and personal hygiene if her husband were not with her, given the degree of functioning she reports currently doing of her own accord. The Medical Assessor, when rating the respondent’s impairment in self-care and personal hygiene was wrong to consider the respondent’s belief about her capacity (or, in the negative, impairment) in a future hypothetical situation. What is relevant is the respondent’s function/impairment in her self-care and personal hygiene on the day of the assessment.
What the evidence reveals is that the respondent is able to manage all aspects of her self-care independently other than doing her laundry and cooking, in regards to which she relies on her husband. The Appeal Panel considers that it is irrelevant that the respondent suggests that her reason for showering daily is in part to calm herself down. What is relevant is that she has the capacity to undertake this aspect of her self-care daily, with no record that this requires any assistance or prompting.
The Appeal Panel notes that the respondent in her statement described missing meals and showers, and not brushing her teeth. But that is not the history the Medical Assessor obtained on 8 April 2025 when he examined the respondent. As said, the Medical Assessor was required to conduct his examination based on the respondent’s presentation and function at the time of assessment, that is, based on her impairment at the time of his examination of her, which is when he composed the history by reference to which he made his assessment.
As said, the Appeal Panel considers the Medical Assessor was wrong to rate the respondent’s impairment as Class 3. This is because the respondent’s impairment is not such that she cannot live independently without regular support, as affirmed by the appellant herself in her statement of 11 February 2025. There is no evidence she must rely on family members or her husband or a community nurse to ensure a minimum level of hygiene and nutrition. In other words, the level of severity of her impairment in self-care and personal hygiene does not accord with a severity of impairment described by the examples for a Class 3 impairment. The level of her impairment, in the Appeal Panel’s view, accords with a level of impairment described by the examples for a Class 2 impairment in that she is able to live independently because she is able to manage most elements of her self-care and personal hygiene without the need for support and has the capacity to look after herself adequately. The Medical Assessor’s exercise of his clinical judgment in rating the respondent’s impairment in self-care and personal hygiene as Class 3 consequently involved error. The Appeal Panel, in correcting that error, rates the respondent’s impairment in self-care and personal hygiene as Class 2.
The Appeal Panel considers that the Medical Assessor did not make any error with respect to his rating of the respondent’s impairment in travel as mildly impaired. The examples provided in Table 11.3 for a Class 1 impairment in travel are:
“No deficit, or minor deficit attributable to the normal variation in the general population;
Can travel to new environments without supervision.”
The examples provided for a Class 2 impairment are:
“Mild impairment; can travel without support person, but only in familiar areas such as local shops, visiting a neighbour.”
The history the Medical Assessor obtained included that the respondent experienced no difficulty with driving or using public transport or air travel prior to her injury. The Medical Assessor further recorded that the respondent drove between the Hunter Valley and Sydney when accompanied by her family, that the respondent does not use public transport (although in February 2024 she did travel by train with a friend) and that the respondent travels between Sydney and New Zealand when accompanied by her husband. True it is, as the appellant submitted, the Medical Assessor did not mention the entries in the copies of the respondent’s bank statements that revealed the respondent made transactions through her bank account when in Hobart in June 2024, but, as the respondent submitted, that does not provide any evidence on whether she travelled there or indicate that she was alone in Tasmania. The evidence does not demonstrate that she has no deficit in her capacity to travel or a minor deficit that would be attributable to the normal variation in the general population. She is not uninhibited with respect to her travel, and the impairment recorded by the Medical Assessor is more than that seen in the “normal population”. The Medical Assessor was consequently correct to correlate her capacity in her ability to travel with a level of severity described by the examples for a Class 2 impairment.
The Appeal Panel also considers that the Medical Assessor made no error with respect to his rating of the respondent’s impairment in social functioning. The examples provided in Table 11.4 of the Guidelines for a Class 1 impairment in social functioning are:
“No deficit, or minor deficit attributable to the normal variation in the general population; no difficulty in forming and sustaining relationships (example a partner, close friendships of lasting years.”
The examples provided for a Class 2 impairment are:
“Mild impairment; existing relationship strained. Tension and arguments with close family member, loss of some friendships.”
The Medical Assessor rated the respondent’s impairment as Class 2 because, notwithstanding that she maintained a good relationship with her family members and with her husband, her friendship group has reduced, and she reports her relationship with her husband lacks intimacy. The lack of intimacy with her husband is a consequence of her injury because it is due to the medications she takes to treat her injury. The Appeal Panel observes, however, the respondent’s general practitioner’s notes record the appellant had a termination of pregnancy at six weeks in October 2024 suggesting, in the absence of fertility treatment, not a complete lack of intimacy. The Appeal Panel also observes that there is no record within the respondent’s general practitioner’s notes of any referral being made for the respondent to consult a fertility specialist or of the respondent having consulted a fertility specialist, and the Appeal Panel infers, from the absence of such a record, that the respondent did not undergo fertility treatment.
The Medical Assessor has also correctly relied on the respondent’s loss of friendships when rating her impairment in social functioning. The appellant submitted that the Medical Assessor in doing that did not record whether the respondent’s loss of friendships was a result of her psychological injury. It is trite that the reasons of a Medical Assessor for the assessment the Medical Assessor makes are not to be read with an eye keenly attuned for error and must be read fairly and in context and as a whole.[1] In the Appeal Panel’s view, this particular submission of the appellant, in substance, seeks the Appeal Panel to adopt an over zealous review of the MAC, which as just indicated, is not how the Medical Assessor’s reasons should be read. The Appeal Panel considers that it is apparent when the MAC is read as a whole that the Medical Assessor has concluded that the loss of the respondent’s friends is a consequence of her injury, noting that, as said earlier, her injury has been diagnosed as post-traumatic stress disorder and major depressive disorder with anxious distress. It is likely that such an injury would affect the respondent’s ability to maintain friendships. Consequently, the Medical Assessor was right not to find that the respondent has no deficit in her social functioning or a minor deficit attributable to the normal variation in the general population and was correct to rate her impairment as Class 2.
[1] Minister for Immigration and Ethnic Affairs v Liang [1996] HCA 6 at [30]-[31]; Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456 at [287]; Neader v The Trustee for Vestito Unit Trust T/as TS 14 & Australia Pty Ltd [2025] NSWFC 866 at [45].
The Appeal Panel also finds that the appellant has not substantiated the ground for appeal listed in s 327(3)(c) of the 1998 Act, being that the Medical Assessor based his assessment on incorrect criteria, given that the Medical Assessor made his assessment of the respondent’s permanent impairment by reference to the criteria listed in Chapter 11 of the Guidelines.
As noted above, the Appeal Panel found that the Medical Assessor did make an error with respect to his assessment of the respondent’s impairment in self-care and personal hygiene, which the Appeal Panel considers is such that the MAC contains a demonstrable error, and the Appeal Panel’s correction of that error is to rate the respondent’s impairment in self-care and personal hygiene as Class 2. That results in the respondent having a degree of permanent impairment from her injury of 9% WPI.
The Appeal Panel notes that neither party contested the deduction the Medical Assessor made under s 323(1) of the 1998 Act. Neither party having raised any controversy about that in their respective submissions, the Appeal Panel cannot visit that issue and must accept the deduction that was made.[2]
[2] Queanbeyan Racing Club Ltd v Burton [2021] NSWCA at [24]-[35].
For these reasons, the Appeal Panel has determined that the MAC issued on 11 April 2025 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W1613/25 |
Applicant: | Jessica Brewer |
Respondent: | JB Hi-Fi Group Pty Ltd |
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 Wayne Mason and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Psychological/psychiatric disorder | 1/11/2018 | Chapter 11 | - | 9% | 1/10 | 8% |
| Total % WPI (the Combined Table values of all sub-totals) | 8% | |||||
0
3
0