Kyle-Robinson v State of New South Wales (NSW Police Force)

[2025] NSWPICMP 601

DETERMINATION OF APPEAL PANEL
CITATION:	Kyle-Robinson v State of New South Wales (NSW Police Force) [2025] NSWPICMP 601
APPELLANT:	David Kyle Robinson
RESPONDENT:	State of New South Wales (NSW Police Force)
APPEAL PANEL
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Douglas Andrews
DATE OF DECISION:	12 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); psychological injury; appellant worker alleged assessment on the basis of incorrect criteria and demonstrable error in the making of assessments under two of the psychiatric impairment rating scale (PIRS) categories namely social and recreational activities and social functioning; Appeal Panel found error due to an inadequate path of reasoning and a re-examination was considered necessary; Held – the findings of mild impairment by the Medical Assessor in both social and recreational activities and social functioning of mild impairment were confirmed by the Appeal Panel; there was a calculation error in the MAC; MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 23 April 2025 the worker David Kyle Robinson (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Christoher Canaris a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 3 April 2025.

2. The appellant relies on the following ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):

   ·        the MAC contains a demonstrable error.

3. 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 grounds of appeal on which the appeal is made.

4. 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.

5. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
   1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

PRELIMINARY REVIEW

1. 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.

2. The appellant requested that he undergo a re-examination by a Medical Assessor who is also a member of the Appeal Panel. As a result of its preliminary review, the Appeal Panel determined that it was necessary for the worker to undergo a further medical examination because the Appeal Panel found error.

EVIDENCE

Documentary evidence

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

Further medical examination

1. Medical Assessor Douglas Andrews of the Appeal Panel conducted an examination of the worker and reported to the Appeal Panel.

Medical Assessment Certificate

1. The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

FINDINGS AND REASONS

1. 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.

2. 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.

3. The matter was referred to the Medical Assessor for assessment as follows:

   “The following matters have been referred for assessment (s 319 of the 1998 Act):

   ·    Date of injury: 4 April 2023  

   ·    Body parts/systems referred: psychiatric and psychological disorders

   ·    Method of assessment: whole person impairment”

4. The Medical Assessor issued a MAC certifying 9% whole person impairment (WPI) as a result of the injury as follows:

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 AMA5 Guides	% WPI	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)
Psychiatric & psychological	4 April 2023	Chapter 11 Workcover Guidelines	Not applicable	9%	0%	9%
Total % WPI (the Combined Table values of all sub-totals)					9%

1. The assessment was based on his assessment under psychiatric impairment rating scale (PIRS) as required by the Guidelines as follows:

“Table 11.8: PIRS Rating Form

Name	David Kyle-Robinson	Claim reference number (if known)	W695/25
DOB	xxxx	Age at time of injury	55 years
Date of Injury	Occupation at time of injury	Police officer
Date of Assessment	25 March 2025	Marital Status before injury	Unmarried but had a partner

Psychiatric diagnoses	1. Posttraumatic stress disorder		2. Alcohol use disorder
3.		4.
Psychiatric treatment	He sees a psychologist and psychiatrist and is on fluoxetine and took her a mate.
Is impairment permanent?	Yes
PIRS Category			Class		Reason for Decision
Self-Care and personal hygiene			3		His girlfriend Hazel would pop in a few days a week and gets the washing done. She would do most of the cooking and cleaning. He does shower daily usually at night and Hazel always ensures he has something clean to wear. She would prompt him to shower and get ready for dinner – they usually eat together although she does not live with him. He eats only the one big meal during the day and has been gaining weight from not doing much exercise with a contribution from the calories in alcohol. Comment: I noted his dishevelled appearance. It was evident that he would not maintain adequate self-care and personal hygiene if he lived on his own warranting Class 3 in this category.
Social and recreational activities			2		He would rarely go out socially and in the last three months has been out for a coffee twice with a mate. He might go out with Hazel “a couple of times a month” usually for lunch. He has given away surf lifesaving saying he no longer does patrols saying, “I just didn’t want to be on the beach and do a rescue when I’m not fit enough [physically] – I used to be the treasurer, but I gave that up because I knew I just couldn’t do the job…”. He struggles if he has to deal with a larger crowd saying, “I don’t do pubs anymore – I used to like to go to see bands – little restaurants is about all I can do – I’m a bit more in control of my environment”. He used to surf and scuba dive and last dived about three months ago when some friends asked him out. He last surfed “a couple of months ago in summer” meeting a mate at the beach. Comment: I noted entries in his GP file referring to trips overseas in mid-2024 relating to surfing holidays as well as his concern that he would be limited by his physical problems. I noted references to his diving twice a week. Finally, I took notice of his statement dated 29 July 2024 in which he writes, “I have always utilised exercises a coping mechanism, and enjoyed bike riding, scuba diving, paddle boarding, surfing and swimming in the ocean. I experience anxiety when I reflect on the fact that my physical injuries may restrict me from pursuing these interests which help with my psychological well-being”. While his social and recreational activities are undoubtedly restricted, this is at least partly attributable to physical limitations which are not assessable under the PIRS.
Travel			2		He still drives and can drive on his own around to appointments and the like. He could not see himself making the eight-hour drive to Sydney on his own or even to Brisbane (“I have been there by not on my own”.  He finds driving draining as he is on the lookout for danger.
Social functioning			2		He met Hazel two years ago and they have been serious for the last year and a half. They get on well “but I know I get frustrated if things are not working properly or things are not right” and he can “be a bit abrupt so I have to be kinder when it comes to that… I’m getting better at that”. Comment: His capacity to maintain a relationship warrants Class 2 in this category.
Concentration, persistence and pace			2		He finds it hard to sleep saying, “I don't read” saying he feels restless and as though “I’m not doing anything productive”. He can manage a newspaper article “if it’s something important to me”.  He can stay with a TV program such as the football for about 80% of the time. He has “not watched a series in ages” saying, “I find that once I've had a few drinks in the afternoon, I’m better just relaxing and going to sleep”. He does a lot of channel surfing. He tries to maintain the mowing and whipper snipping but not as much as before saying, “I don’t manicure it like I used to”. He does not do any major maintenance. He thinks he could assemble a flatpack “with frustration”. He had been “pretty good at putting things together – little shelters for the pump tanks over the years – I used to be pretty good at the bookwork but it’s not a priority until it has to be done”. He has managed recently to finalise his tax return compiling his receipts and bank details for his tax agent. Motivation is a big obstacle in this regard. Comment: His capacity to finalise his tax returns and to perform basic maintenance around the house is more consistent with Class 2 in this category.
Employability			5		He has not thought of working saying, “The only place I’d work at is my own house – I can’t commit to turning up at eight and stay on till five – I’m not in the frame of mind to talk to people or explain the difference between one cupboard and another – the frustration factor… the irritability… and then the care factor – why would I care”. He has started to clean up his shovel handles and tools and will do “basic stuff around the house”. Comment: He is realistically not employable on the open market.
Score											Median Class
2	2	2		2		3	5			= 2
Aggregate Score Impairment								Total
+ 2	+ 2	+ 2		+ 2		+ 3	+ 5			= 16

Impairment (% WPI) from table 11.8	9%
Adjustment for Treatment Effect (if any)	1%
Less Pre-Existing Impairment (if any)	0%
Final impairment (% WPI)	10%

1. The Appeal Panel notes that the Medical Assessor in fact made an error in his final certificate because he had assessed 10% WP (allowing 1%) for the effects of treatment but the certificate certified 9% WPI. This error has not formed the basis on which the Appeal Panel has approached the Appeal.

2. The worker appealed.

3. In summary, the appellant submitted that the Medical Assessor made assessments on the basis of demonstrable errors in the assessments he made under two of the six PIRS categories, namely social and recreational activities and social functioning, causing him to make an error in the assessments in these domains as follows:

   (a)    in assessing Class 2 for social and recreational activities when he should have assessed Class 3, and

   (b)    in assessing Class 2 for social functioning when he should have assessed Class 3.

4. In summary it was submitted that principally this error arose because the Medical Assessor did not provide an adequate path of reasoning for his findings in the contested domains.

5. In summary, the employer State of New South Wales (NSW Police Force) (the respondent) submitted that the Medical Assessor did not err and the MAC should be confirmed. It was submitted that the MAC was adequately reasoned when read as a whole and the findings were open to the Medical Assessor applying his clinical expertise to the assessment.

6. The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an independent assessment of impairment under the PIRS categories. The assessment is not to be based upon self-report alone. An appeal panel cannot disturb ratings under the PIRS for mere difference of opinion but must be satisfied as to error.

7. The path of reasoning disclosed by the Medical Assessor must be adequate. This is also dependent on the extent of the history taken and a thorough examination of the worker so that self-report can be properly evaluated in the context of other evidence before the Medical Assessor. The Appeal Panel considered that the path of reasoning was inadequate, and it was not clearly discernible from the reasons given that the assessments under the contested PIRS categories were based upon the correct criteria.

8. In these circumstances of the above finding of error, the Appeal Panel considered that a
   re-examination by a Medical Assessor member of the Appeal Panel was necessary. Medical Assessor Douglas Andrews was appointed to conduct the re-examination, and he reported to the Appeal Panel as follows (emphasis in original):

“APPEAL AGAINST MEDICAL ASSESSMENT

REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR

MEMBER OF THE APPEAL PANEL

Matter Number:	M1-W695/25
Appellant:	David Kyle-Robinson
Respondent:	State of New South Wales (NSW Police Force)
Date of Determination:	04 August 2025

Examination Conducted By:	Douglas Andrews
Date of Examination:	04 August 2025

1.   The workers medical history, where it differs from previous records

Mr Kyle-Robinson is a 58-year-old retired police officer who lives at Myocum on a 6-acre property. He has a partner, Hazel, who visits and stays with him three or four days weekly.

He joined the NSWPF in 2006. He has not worked since April 2023 and was medically retired in March 2024.

He was examined by Medical Assessor Canaris on 3 April 2025, who diagnosed
Mr Kyle-Robinson with PTSD and an alcohol use disorder and determined a 9% WPI before adding 1% WPI for the effects of treatment, arriving at a final 10% WPI.

Mr Kyle-Robinson appealed on the grounds of alleged error in the PIRS categories of social and recreational activities and social functioning.

2.   Additional history since the original Medical Assessment Certificate was performed

There have been no further significant events in Mr Kyle-Robinson’s life since being examined by the MA.

3.   Findings on clinical examination

Mr Kyle-Robinson continues to be cared for by his general practitioner, Dr Alistair Nuttall, psychologist Ms Kelly Bisgrove and psychiatrist Dr James Whan. He sees his psychologist every two weeks, either in person or by audiovisual link, and his psychiatrist every two months, by telephone or audiovisual link.

Current treatment:

He remains on fluoxetine 20 mg daily and topiramate 50 mg nocte.

There had been discussion regarding attending a PTSD program at Currumbin clinic, but this never eventuated. Mr Kyle-Robinson felt unable to commit to such a program.

General health:

Mr Kyle-Robinson has chronic orthopaedic problems affecting his knees and shoulders from injuries that occurred in the workplace. These sometimes limit his physical activities.

He takes a regular anti-inflammatory medication, meloxicam, and occasional codeine or oxycodone for pain.

He is drinking alcohol to excess. He usually drinks about six full-strength beers daily (equivalent to 9 standard drinks) but on occasion may drink as many as 12. This has improved in the last 6 to 12 months, and Mr Kyle-Robinson has given up drinking spirits. His drinking increased in 2017 with increased work stress.

He has gained weight since leaving work, approximately 10 kg. His current weight is 104 kg; at 180 cm, his BMI is 32.0, in the overweight range.

On reflection, Mr Kyle-Robinson believes his mental health started deteriorating about five years ago, and he first sought help about two years ago. With support from his partner and treating clinicians, he feels that his condition has improved somewhat over time.

Current symptoms:

Mr Kyle-Robinson sometimes feels depressed, but his predominant mood is one of frustration. He is prone to irritability and anger. When angry, he tends to speak loudly, often directing his frustration at his partner. This might start with a simple enquiry such as, ‘What did you do today?’

He has general anxiety with worries about his future. He becomes more anxious when confronted with medical assessments, and he has anxiety-related somatic symptoms such as shortness of breath and tachycardia.

He lacks motivation and is sometimes tired.

He is bothered by intrusive thoughts relating to his police career and experiences emotional distress when confronted with reminders. For example, if he sees a rope, this brings up intense memories of hangings that he has attended.

He has subjective problems with concentration and attention.

Mr Kyle-Robinson generally falls asleep easily following his alcohol intake but wakes frequently during the night. He suffers distressing dreams and, when awake, intrusive thoughts.

With encouragement from Hazel, he eats a good diet but occasionally binges on poor-quality food.

He has significantly reduced libido.

Activities of daily living:

Mr Kyle-Robinson spends much of his time at home and struggles to attend to household chores or outside yard work. His partner does the housework and most shopping. He will go out for items if they run short between major shopping times.

He sometimes skips breakfast but usually eats lunch and dinner, prepared by Hazel. She will make meals for freezing for days when she isn’t there.

He showers daily.

Mr Kyle-Robinson was socially and physically active before his injury. He enjoyed outings with friends to attend live music and eat out. He was a recreational diver, a surfer and enjoyed swimming. He regularly rode his bicycle. Some of these physical activities are limited because of his orthopaedic problems, but to a large extent, he has lost motivation.

He will no longer go out to bands or the local pub. He and Hazel generally don’t go out to restaurants and cafés, preferring to stay home.

He scuba dives locally about twice yearly, the last time a few months ago at Byron Bay. He surfs about once a month.

He has about five friends, one of whom he sees weekly.

He travelled to Mexico in mid-2024 to spend time with an American friend. In late 2024, he travelled to Palau for a diving trip. He travelled to Indonesia three or four months ago for a surfing trip. On these trips, he has met up with friends. Mr Kyle-Robinson said that he finds the travel stressful and may take diazepam to assist with the journey. However, he usually makes the journey on his own and meets up with his friends when he arrives. Regarding travel, he said, ‘It is the only thing that keeps me going.’

Mr Kyle-Robinson separated from his long-term partner in 2017. He described their drifting apart and having separate interests. He met Hazel more than two years ago, when she approached him and chatted with him while he was working. They started a relationship and are now partners. Mr Kyle-Robinson has siblings with whom he keeps in contact a couple of times a year. He said, ‘I am not a big family person.’

Mental state examination:

I assessed Mr Kyle-Robinson in his home via an audiovisual link for about 60 minutes. The connection quality was adequate to do a comprehensive assessment.

He presented casually attired with long, unkempt hair and beard. He wore an earring in his left ear. He had a generally dishevelled appearance.

His mood was low with significant anxiety. His affect was restricted, consistent with his stated mood and congruent with the interview content.

There is no evidence of disorder of thought-form or perception.

Mr Kyle-Robinson acknowledged suicidal thoughts without plans or intent.

At the end of the interview, I reviewed extracts from the provided brief. I asked Mr Kyle-Robinson whether we had covered everything he felt necessary and he agreed that we had. Asked if he had any further comments, he said, ‘I didn’t expect to be damaged like this. I am asking for recognition; I know I have to fight… Hopefully this is the end of it.’

Diagnoses:

Mr Kyle-Robinson meets the DSM-5 TR criteria for post-traumatic stress disorder and an alcohol use disorder, as described by the MA.

Whole person impairment:

The MA’s ratings for self-care and personal hygiene, travel, concentration, persistence and pace, and employability were not appealed.

Social and recreational activities – Mr Kyle-Robinson is less active than before his injury. He sees a friend weekly, usually at his house or his friend’s house. He occasionally dives or surfs locally. He has given up going to live concerts. In the last 12 or so months, he has had three international trips where he has met up with friends and engaged in activities such as diving or surfing. One of those trips was just a few months ago. He attends these events without a support person and is actively engaged. This is consistent with a mild impairment – Class 2.

Social functioning – Mr Kyle-Robinson’s long-term relationship broke up in 2017. More than two years ago, he forged a new intimate relationship, which he has retained. Although he is irritable, which may put some strain on the relationship, they remain supportive and caring of each other. He has retained five close friends, one of whom he sees frequently. He maintains his connection with these friends by travelling and sharing activities. This is consistent with a mild impairment – class 2.

These ratings are identical to those determined by the MA.

4.   Results of any additional investigations since the original Medical Assessment Certificate

No additional investigations were done.”

1. The Appeal Panel considers that the examination undertaken by Medical Assessor Douglas Andrews was conducted in a thorough manner. The Appeal Panel notes the history Medical Assessor Douglas Andrews has provided in his report to the Appeal Panel, including the history as to the appellant’s ability to function in the PIRS categories that has been challenged on appeal, namely social and recreational activities and social functioning. The Appeal Panel notes Medical Assessor Douglas Andrews findings on clinical examination of the appellant and his diagnosis made after clinical examination of the appellant, that the appellant meets the DSM-5 TR criteria for post-traumatic stress disorder and an alcohol use disorder. The Appeal Panel agrees with and adopts the findings of Medical Assessor Douglas Andrews.

2. In respect of Social and Recreational Activities, Table 11.2 of the Guides provides as follows:

   Table 11.2: Psychiatric impairment rating scale – social and recreational activities

Class 1	No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.
Class 2	Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3	Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.
Class 4	Severe impairment: never leaves place of residence. Tolerates the company of family member or close friend, but will go to a different room or garden when others come to visit family or flat mate.
Class 5	Totally impaired: Cannot tolerate living with anybody, extremely uncomfortable when visited by close family member.

1. The Appeal Panel adopts the findings of Medical Assessor Douglas Andrews on re-examination as follows:

   “Social and recreational activities – Mr Kyle-Robinson is less active than before his injury. He sees a friend weekly, usually at his house or his friend’s house. He occasionally dives or surfs locally. He has given up going to live concerts. In the last 12 or so months, he has had three international trips where he has met up with friends and engaged in activities such as diving or surfing. One of those trips was just a few months ago. He attends these events without a support person and is actively engaged. This is consistent with a mild impairment – Class 2.”

2. The Appeal Panel considers that based on these findings, the best fit is a mild impairment or class 2 for social and recreational activities.

3. In respect of Social Functioning, Table 11.4 of the Guides provides as follows:

   Table 11.4: Psychiatric impairment rating scale – social functioning

Class 1	No deficit, or minor deficit attributable to the normal variation in the general population: No difficulty in forming and sustaining relationships (eg a partner, close friendships lasting years).
Class 2	Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Class 3	Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.
Class 4	Severe impairment: unable to form or sustain long term relationships. Pre-existing relationships ended (eg lost partner, close friends). Unable to care for dependants (eg own children, elderly parent).
Class 5	Totally impaired: unable to function within society. Living away from populated areas, actively avoiding social contact.

1. The Appeal Panel adopts the findings of Medical Assessor Douglas Andrews on re-examination as follows:

   “Social functioning – Mr Kyle-Robinson’s long-term relationship broke up in 2017. More than two years ago, he forged a new intimate relationship, which he has retained. Although he is irritable, which may put some strain on the relationship, they remain supportive and caring of each other. He has retained five close friends, one of whom he sees frequently. He maintains his connection with these friends by travelling and sharing activities. This is consistent with a mild impairment – class 2.”

2. The Appeal Panel considers that based on these findings, the best fit is a mild impairment or class 2 for social functioning.

3. As the Appeal Panel’s findings are the same as the Medical Assessor in the contested domains of social and recreational activities and social functioning, the MAC in this respect is confirmed. However, the MAC will need to be revoked because the final certificate was issued for 9% WPI when the Medical Assessor had in fact assessed 10% when the MAC is read as a whole.

4. For these reasons, the Appeal Panel has determined that the MAC issued on
   3 April 2025 should be revoked and a new MAC 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:	W695/25
Applicant:	David Kyle Robinson
Respondent:	State of New South Wales (NSW Police Force)

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

The Appeal Pane revokes the Medical Assessment Certificate of Medical Assessor Christopher Canaris 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 AMA5 Guides	% WPI	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)
Psychiatric & psychological	4 April 2023	Chapter 11 Workcover Guidelines	Not applicable	10%	0%	10%
Total % WPI (the Combined Table values of all sub-totals)					10%

The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.