Musgrave v State of New South Wales (NSW Police Force)
[2025] NSWPICMP 693
•10 September 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Musgrave v State of New South Wales (NSW Police Force) [2025] NSWPICMP 693 |
| APPELLANT: | Melissa Musgrave |
| RESPONDENT: | State of New South Wales (NSW Police Force) |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Ash Takyar |
| DATE OF DECISION: | 10 September 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); whether the ratings the Medical Assessor (MA) made of the appellant’s impairment in all psychiatric impairment rating scale (PIRS) categories accorded with the evidence and whether the Medical Assessor (MA) had focused on sufficient matters regarding the appellant’s function so as to be able to rate the appellant’s function in all domains; Held – the MA obtained a sufficient history to be able to rate the appellant’s impairment and had regard to the relevant evidence; there was no demonstrable error in the MAC and the MA made his assessment based on the correct criteria; MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 13 June 2025 Melissa Musgrave, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Gerard Walsh, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 16 May 2025.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the1998 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 worked for the State of the New South Wales as a Police Officer, commencing in 1994. She last worked as such in October 2023. Due to numerous incidents to which she was exposed during her employment she suffered a psychological injury that has been diagnosed as post-traumatic stress disorder and persistent depressive disorder.
The appellant claimed compensation from the respondent for permanent impairment she has from her injury and compensation for pain and suffering from her impairment. With respect to her claim for compensation for permanent impairment she relied on a report of psychiatrist
Dr Glen Smith dated 6 August 2024 who had assessed the degree of her permanent impairment from her injury is 26% whole person impairment (WPI).To respond to that claim the respondent’s insurer organised for the appellant to be examined by psychiatrist Dr Peter Young on 3 December 2024. In a report dated 9 December 2024
Dr Young advised the insurer that he assessed the degree of the appellant’s permanent impairment from her injury is 7% WPI. He also advised that he considered the appellant had not achieved maximum medical improvement (MMI) relating to her injury. That was on the basis that he considered with further and escalated treatment, the appellant was likely to experience improvement in her symptoms.The respondent’s insurer wrote to the appellant on 3 February 2025 advising her it was unable to assess her claim for permanent impairment. It further advised her that to be eligible for compensation for permanent impairment she must have reach MMI. It enclosed with its correspondence a copy of Dr Young’s report.
The appellant then initiated proceedings in the Personal Injury Commission (Commission) seeking the Commission determine her claim for compensation for permanent impairment. Before that could happen, various medical disputes between the parties relating to the appellant’s permanent impairment from her injury had to be resolved, and to that end a delegate of the President of the Commission referred those matters in dispute to the Medical Assessor to assess.
As said, the Medical Assessor issued the MAC 16 May 2025 in response to that referral. In that the Medical Assessor answered “yes” to the standard question “have all body parts/systems stabilised/reached maximum medical improvement?” By that is apparent the Medical Assessor considered the appellant’s impairment from her injury is permanent and that it is fully ascertainable.
The Medical Assessor also assessed, and certified, that the degree of the appellant’s permanent impairment from her injury is 5% WPI. The Medical Assessor expressed his opinion that the appellant did not have any pre-existing conditions or abnormalities or had suffered any previous injuries that formed part of her permanent impairment. The Medical Assessor stated that in making his assessment he had regard to the information he obtained during the assessment, his observations of the appellant (which he recorded in the MAC), and the information within the documents he had been provided with the Commission’s referral, some of which he either extracted or summarised within the MAC.
The Appeal Panel observes that Medical Assessor’s assessment of the appellant’s permanent impairment was done by reference to the psychiatric impairment rating scale (PIRS), which is detailed in paragraphs 11.11 and 11.12 of the Guidelines.
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 appellant to undergo a further medical examination. This is because the Appeal Panel came to the view that the appellant had not established the grounds for appeal on which she relied, and consequently the Appeal Panel neither has power nor reason to examine the appellant.[1]
[1] New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [33]; Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130]; Saveski v Brunjev Pty Ltd [2025] NSWSC 157 at [66].
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.
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 appellant in her appeal against the medical assessment contended, in substance, that the Medical Assessor’s ratings of her impairment in the several PIRS categories did not accord with the evidence before him and that his focus on matters relating to her function was not sufficiently broad for him to be able to rate correctly her impairment in several PIRS categories.
Specifically, regarding the Medical Assessor’s rating of her impairment in self-care and personal hygiene, which is Class 2, that is a mild impairment, the appellant submitted that the Medical Assessor “focused almost entirely on food.” The appellant submitted to the effect that several other elements of her function in this domain had been adversely affected by her injury, including that she does the laundry once every two weeks, vacuums only every three weeks, and does not maintain an adequate standard of cleanliness of her home. The appellant submitted the correct rating is Class 3, that is moderate impairment.
The reasons the Medical Assessor provided in the PIRS rating form for his rating of the appellant’s impairment in self-care and personal hygiene were:
“Class 2 and not Class 1 was selected because she relies on take-away food.
She had mild impairment.
Bathing: She said she is completely independent of self-care and does not need prompting.
Cooking: The Claimant said she makes a light snack and last cooked a meal a few weeks ago. She said she relies on take aways.
Household chores: She reported that she does the laundry once every two weeks and vacuuming every three weeks. She does light cleaning but does not think it is adequate standard.
Shopping: She stated that she goes alone shopping to the supermarket once a week. She stated that before the subject injury, she was completely independent in bathing, grooming, household chores and shopping.”
The Medical Assessor also recorded in the MAC that he observed the appellant was well groomed at the time he examined her. The Medical Assessor also noted that Dr Smith had rated the appellant’s impairment in self-care and personal hygiene as Class 3 on the basis that the appellant reported she could not get out of bed for days due to her symptoms, that she did not prepare meals and had food delivered to her, that she neglected cleaning, and that she had received assistance at times particularly in 2017. The Medical Assessor observed that Dr Young had rated the appellant’s impairment as Class 2 because he found the appellant had reduced attention to her appearance but showered and changed her clothes as required without prompting, that she did not cook at home and relied on
pre-prepared meals service, and that she did not keep up with domestic duties.The Appeal Panel considers that the history the Medical Assessor obtained covered all necessary elements of the appellant’s function in self-care and personal hygiene that were necessary for the Medical Assessor to rate the appellant’s impairment in this domain. The Appeal Panel consequently does not accept the appellant’s submissions to the effect that the Medical Assessor’s focus was too narrow, that he based his rating only on the appellant’s capacity with feeding herself and that he ignored other relevant aspects of her function in this domain.
It is evident from the reasons the Medical Assessor provided in the PIRS rating form that the history the Medical Assessor obtained relating to the appellant’s current function in self-care and personal hygiene, and by reference to which he rated the appellant’s impairment, covered all relevant aspects of her self-care and personal hygiene, in that it included how the appellant maintains her household, whether she bathes herself, what meals she prepares and how frequently she does so and how she maintains her nutrition, and how she obtains her provisions.
The Appeal Panel discerns no error in the Medical Assessor rating the appellant’s impairment as Class 2 in self-care and personal hygiene. That rating accords with a severity of impairment captured by the examples in Table 11.1 for a Class 2 impairment which are:
“mild impairment: able to live independently; looks after self adequately, although may look unkept occasionally; sometimes misses a meal or relies on take-away food.”
The history the Medical Assessor obtained do not accord with a level of impairment described by the examples for Class 3 impairment which 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 Appeal Panel notes that the appellant does not need prompting with respect to her hygiene. Whilst she is able to do some cooking, although she relies on take-away meals. She is able to undertake household chores, but not to a level that she considers is adequate. She does not however rely upon outside assistance. She can attend to her shopping. As said, in the Appeal Panel’s view, that accords with a mild impairment and not a moderate impairment in self-care and personal hygiene, and consequently there is no error, in the Appeal Panel’s view, by the Medical Assessor rating her impairment as such.
With respect to the Medical Assessor’s rating of the appellant’s impairment in social and recreational activities, which is Class 1, that is no deficit or a minor deficit attributable to the normal variation of the general population, the appellant submitted the history the Medical Assessor obtained, which included she will socialise only once or twice a week if she feel up to it, necessarily meant that she must have some deficit in her function in this domain. The appellant submitted her impairment in this domain should be rated as Class 3.
The reasons the Medical Assessor provided in the PIRS rating form for his rating form were:
“Class 1 and not Class 2 was selected because she goes out regularly socially and belongs to clubs and associations and is actively involved with these.
She had no deficit, or minor deficit.
Exercise: She stated that she goes walking once a week alone and once a week with her partner. She lives across the road from a sports ground.
She said she has not gone to the gym since around April 2024.
Other activities: The Claimant said she watches television mainly but enjoys working on video editing at home. She goes to the local community historical society meetings. She attends the Camden Creative Club once a quarter and talks about current topics. She is involved in the Spirit of Camden which focuses on the local community.
Frequency of socialising: She said she socialises once or twice a week if feeling up to it. She said she has gone out for Mother’s Day a few days ago (11/05/2025) and went out with a friend yesterday (13/05/2025).
Involvement when out: She reported that she gets involved when out.
The Claimant said a support person is not needed to go out and she can go alone.
She stated that before the subject injury, she used to enjoy musical community theatre and community radio. She did bike riding in a gym until 2017 but not since.”
The Medical Assessor noted within the MAC that Dr Smith had assessed the appellant’s impairment in social and recreational activities is Class 3, and he detailed the reasons
Dr Smith provided for his rating. The Medical Assessor also noted that Dr Young had rated the appellant’s impairment is Class 2 and he also detailed the reasons Dr Young provided for that rating.The examples provided in Table 11.2 of the Guidelines for a Class 1, Class 2 and Class 3 impairment in social and recreational activities are:
Class 1
No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.
Class 2
Mild impairment: occasionally goes out to such events e.g. without needing a support person, but does not become actively involved (e.g. 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.
The Medical Assessor’s rating is based, in essence, on his finding the appellant had a minor deficit in this domain because of her injury. The Appeal Panel considers that the Medical Assessor made no error in that assessment. The Medical Assessor took account of the fact that the appellant, if she is not “feeling up to it, will not socialise, but otherwise she does so once or twice a week.” It seems to the Appeal Panel that it is apparent from the Medical Assessor’s reasoning that he considered the minor deficit of the appellant’s function in social and recreational activities accords with a normal variation in the general population. The Appeal Panel considers it was not wrong for the Medical Assessor to form that conclusion and this because it is not unusual for someone occasional to skip events if feeling unwell. The reasons the Medical Assessor provided indicates the appellant engages in a lot of activity and that she participates in that activity. The reasons the Medical Assessor provided reveal the appellant socialises more than occasionally. That does not accord with a severity of impairment described by the examples for Class 2 or Class 3 impairment.
The Appeal Panel discerns no error on the account of Medical Assessor rating the appellant’s impairment as Class 1.
The Medical Assessor rated the appellant’s impairment in travel as Class 1. The appellant submitted that it should be Class 2.
The Medical Assessor’s reasons for his rating, as detailed in the PIRS rating form, were:
“Class 1 and not Class 2 was selected because she can travel interstate and does not have impairment.
She had no deficit, or minor deficit
The Claimant said a support person is not required to travel and she has no restrictions on driving.
The last time she went on holiday was recently during the school holidays when the family drove to Canberra.
She stated that before the subject injury, she could travel anywhere without any problem.”
The Medical Assessor noted within the MAC that Dr Smith rated the appellant’s impairment is Class 2 on the basis that the appellant was able to drive alone in her local area but generally avoidant of travelling in a public setting. The Medical Assessor also noted that
Dr Young rated the appellant’s impairment is Class 1 on the bases that the appellant reported she had no difficulties driving, that she generally only needed to drive locally but could drive to Sydney when required without difficulty, and that she had recently travelled to Bateau Bay for a family holiday. The Medical Assessor observed that Dr Smith had not noted the appellant’s trips to Sydney and elsewhere when making his rating of the appellant’s impairment in travel.The appellant submitted that the Medical Assessor should have rated her impairment in travel is Class 2. The appellant submitted that the Medical Assessor seemed to have based his rating on her ability to drive. The appellant submitted that travel involves more than just driving and that the Medical Assessor did not appear to have considered this. The appellant also submitted that her not needing a support person to drive is not the same as being able to travel without any impairment.
Whilst the appellant’s submission that travelling involves more than driving is correct, the evidence that was before the Medical Assessor did not reveal by what other means or conveyance she may travel or, if she does use other means, that she would not have any current impediment in travelling. In any event, the history the Medical Assessor obtained, by reference to which he rated the appellant’s impairment in travel, was in substance that her travelling is done by driving. The Medical Assessor was entitled to rely on that history to make his rating of the appellant’s impairment in travel. That history reflects that the appellant has no impairment in her ability to travel. She does not need a support person to travel. She can travel to new environments without supervision.
The Appeal Panel finds that the Medical Assessor made no error when rating the appellant’s impairment in travel.
The Medical Assessor rated that the appellant’s impairment in social functioning is Class 1. The appellant contends that was an error and the correct rating is Class 3.
The reasons the Medical Assessor’s provided for his rating in the PIRS rating form were:
“Class 1 and not Class 2 was selected because she has no difficulty in forming and sustaining relationships. There is no tension and no arguments with her partner.
She had no deficit, or minor deficit.
Relationship with her partner: She said she is in a six-year relationship which is good. There has been no domestic violence or periods of separation due to mental health issues. She said her marriage ended in 2013 due to the work related issues.
Relationship with children: She stated that she has two sons, one of whom has Autistic Spectrum Disorder. The other is 14 and still has some behavioural difficulties. She did not have anyone helping care for her children and they are mostly self-sufficient. She said their needs has not affected her mental health but thought her mental health issues impacted on their development.
Relationship with siblings: The Claimant said she has a younger brother and an older stepbrother and has a good relationship with them.
Relationship with parents: She reported that she has a good relationship with his parents, particularly her mother.
Relationship with friends: She stated that she has supportive friends when they are needed. She sees them once every two weeks coffee.
She stated that before the subject injury, she went out with family and friends often.”
The Medical Assessor noted within the MAC that Dr Smith rated the appellant’s impairment in social functioning is Class 3 on the bases that the appellant had reported strain in her relationship with her partner, although her partner was supportive, and that the appellant had attributed her divorce from her husband to anxiety and depressive symptoms she experienced as a consequence of her injury. The Medical Assessor also noted that Dr Young rated the appellant’s impairment is Class 2 on the bases that whilst the appellant was in a supportive relationship there were some difficulties and tension in the relationship, and the appellant had contact usually by social media with friends with whom she met up once every few months.
The appellant submitted that the Medical Assessor’s rating involved the Medical Assessor “cherry picking one fact” and basing his assessment on that fact. That fact, the appellant contended, was that she had no difficulty forming and sustaining relationships. The appellant highlighted that her injury impacted on her children’s development which she submitted must be regarded as being significant and as such as elevating her above having “no deficit” or “minor deficit” that accords with a Class 1 rating.
The Appeal Panel does not agree with the appellant's submission. The Medical Assessor did not rely upon one fact to rate the appellant’s impairment in this domain and that is apparent from the reasons he provided. The Appeal Panel notes that the history the Medical Assessor obtained differed from that which Dr Smith and Dr Young obtained, in that the history he obtained was that the appellant experienced no tension and arguments in her relationship with her partner and that her relationship with her partner is good. The Medical Assessor was cognisant of the histories that Dr Smith and Dr Young had respectively obtained when he elicited from the appellant the history he obtained. The Medical Assessor was entitled to make his assessment by reference to the history he obtained.
The Medical Assessor’s assessment was based on the appellant maintaining good relationships with her siblings, a good relationship with partner’s parents, and good relationships with her friends. The Medical Assessor noted that the appellant was able to maintain a relationship with her children, one of whom has special needs. Whilst the Medical Assessor noted that the appellant felt her injury may impact her children’s development, the Medical Assessor did not however obtain a history that there was any strain or tension in the relationship between the appellant and her children.
The examples for a Class 1, Class 2 and Class 3 impairment provided in Table 11.4 of the Guidelines for social functioning are:
Class 1
No deficit, or minor deficit attributable to the normal variation in the general population: No difficulty in forming and sustaining relationships (e.g. 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.
The history the Medical Assessor obtained did not reveal there was tension or argument between the appellant and her partner or between her and her other family members. Nor did it reveal the appellant had lost some friendships. The evidence revealed that the appellant divorced her husband some years ago and it can be inferred from that there was tension and severe strain in that relationship and in all likelihood her injury would have been a major contributing factor to that, but since then the appellant has met her current partner and has sustained a good relationship with him over the course of years. The evidence did not demonstrate that there is any tension in the relationship between appellant and her children.
In the Appeal Panel’s view, noting the history the Medical Assessor obtained, there was no error in his correlating the appellant’s impairment in social functioning with a level of severity described by the examples for a Class 1 impairment and not correlating them with a level of severity described by the examples for a Class 2 or Class 3 impairment. The Appeal Panel considers, as the Medical Assessor did, that history he obtained revealed that the appellant has no deficit in her social functioning and hence the Appeal Panel discerns no error in the Medical Assessor rating the appellant’s impairment in this domain as Class 1.
The Medical Assessor rated the appellant’s impairment in concentration, persistence and pace is Class 2. The appellant contended that was an error and the correct rating is Class 4. The Medical Assessor provided the following reasons in the PIRS rating form for his rating:
“Class 2 and not Class 1 was selected because she can focus on intellectually demanding tasks for periods of up to thirty minutes. She managed the 1 hour assessment well and had no difficulty sustaining her concentration.
She had mild impairment.
She said her concentration was currently generally alright but it depended on
circumstances. She said she can read for half an hour to prepare for interviews. She said she bounces from one topic to another.
She said her concentration was good before the subject injury.”
Within the MAC the Medical Assessor also recorded that he observed from his examination of the appellant that the appellant’s speech was spontaneous and normal in volume, rate, rhythm, and prosody, and that her thought form was logical with no formal thought disorder. The Medical Assessor also noted that Dr Smith had rated the appellant’s impairment is
Class 4 because the appellant had presented to him with severe difficulties with thinking and concentration and experienced concentration deficits in brief conversations. The Medical Assessor noted that Dr Young had rated the appellant’s impairment is Class 2 because that the appellant reported difficulties maintaining attention and concentration, but was able to watch TV all day long and did puzzles, was able to read news online and participate in a community radio station where she selected music and conducted interviews related to musical theatre.The appellant submitted that the Medical Assessor’s rating was “nonsensical” and that the Medical Assessor did not explain why, on the basis that she had “limited concentration of 30 minutes”, he considered her impairment is mild. The appellant noted that prior to her injury she had to sustain her concentration at her work for a period of much longer than 30 minutes. The appellant submitted that the Medical Assessor “seemed to fail to take into account the history he recorded that her ability to concentrate depended on circumstances.”
The examples provided in Table 11.5 of the Guidelines for a Class 2, Class 3 and Class 4 impairment in CPP are:
Class 2
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.
Class 3
Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (e.g. operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.
Class 4
Severe impairment: can only read a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even during brief conversation. Unable to live alone, or needs regular assistance from relatives or community services.
In the Appeal Panel’s view, the Medical Assessor did not find that the appellant’s concentration was limited to 30 minutes. What he found is that she would be capable of undertaking intellectually demanding tasks for up to 30 minutes. The Medical Assessor recorded that the appellant was able to maintain concentration for the hour duration of his examination took. He said that the appellant had no difficulty in sustaining her concentration over that time. The Medical Assessor noted that the appellant described her concentration as “generally alright” but he also noted that depended upon the appellant’s circumstances. The Medical Assessor also took into account that the appellant was able to read for a half an hour to prepare for interviews. That is an obvious reference to the interviews she conducted in her volunteer work. It is apparent that would involve concentration.
The Appeal Panel discerns no error in the Medical Assessor rating the appellant’s impairment is Class 2. What he explains in the PIRS rating form reveals that the appellant can undertake intellectually demanding tasks for up to 30 minutes and that is evident from the fact that she prepares for her interviews by reading for half an hour. The Medical Assessor’s rating is also based on the appellant having been able to sustain her concentration during the hour duration of his interview with her.
In the Appeal Panel’s view that accords with a level of severity described by the examples for a Class 2 impairment. The history the Medical Assessor obtained does not accord with a level of impairment captured by the examples for a Class 3 or Class 4 impairment. The history on which the Medical Assessor based his impairment does not reveal that the appellant is unable to read more than a newspaper article or finds it difficult to follow complex instructions or can only read a few lines before losing concentration or having difficulty following simple instructions. What the Medical Assessor recorded in the MAC from his observation of the appellant during the examination does not reveal the appellant has any concentration deficits. The evidence does not reveal that the appellant would be unable to live alone or need regular assistance from relatives or community services.
The Medical Assessor rated the appellant’s impairment in employability as Class 4. The appellant contended that is an error and the Medical Assessor ought to have rated it as Class 5. The reasons the Medical Assessor provided for his rating in the PIRS rating form were:
“Class 4 and not Class 3 was selected because she cannot work more than one or two days at a time, less than twenty hours per fortnight. Pace is reduced, attendance is erratic. This is evidenced by her non-paid voluntary work and times when her function deteriorates for three days.
She had severe impairment
Work: She said she has not had paid employment since October 2023.
Volunteering: She stated that she does volunteer work at the community radio two hours a week.
She said she uploads the music and does not go into the station. Once a week, she interviews people over the phone for 10 to 15 minutes about local issues.
She said the barriers to returning to work were being reminded about the work-related issues and that she decompensates for a few days every few weeks. She said it was also challenging returning to work and being told to do tasks by people without the necessary ability to do the job.
She stated that there were never any issues with employment before the subject injury.”
The Medical Assessor noted that both Dr Smith and Dr Young rated the appellant’s impairment in employability is Class 5. The Medical Assessor noted that Dr Smith had done so because the appellant had applied for medical retirement and because he considered the appellant was unfit for any work due to anxiety and depressive symptoms with associated cognitive impairments. The Medical Assessor noted that Dr Young’s rating of the appellant’s impairment was on the basis that the appellant had been absent from work for an extended period and had suffered ongoing symptoms affecting her motivation and attention that he considered made her uncompetitive for work.
The appellant submitted that the Medical Assessor considered the wrong issue, namely the fact that she engages in volunteer work. The appellant submitted that her doing volunteer work erratically is not the same as her holding down any paid work. The appellant submitted that the barriers to her returning to work must be regarded as absolute noting that she has not worked since October 2023.
The examples provided in Table 11.6 of the Guidelines for a Class 4 impairment are:
“Severe impairment: cannot work more than 1 or 2 days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.”
The example provided a Class 5 impairment is, “Total impairment: cannot work at all.”
The Appeal Panel does not agree with the appellant’s submission that the Medical Assessor took into account a wrong issue by considering the appellant undertaking volunteer work. In substance, what the Medical Assessor did was to consider the tasks the appellant performs in her volunteer work and, based on her doing those tasks, formulate his opinion on what compacity she has in employability. The Medical Assessor was aware that the appellant had not been engaged in paid employment since October 2023. The Medical Assessor noted that the work the appellant did in a volunteer capacity involved her uploading music and interviewing people over the phone for 10 to15 minutes at a time. The Appeal Panel notes that type of work involves some degree of complexity. The Medical Assessor was cognitive of the fact that the appellant’s pace in undertaking that work is reduced and that her attendance is erratic and that she only performs the work for two hours a weeks after which her function deteriorates for a period of three days. The Medical Assessor took into account that there were barriers to the appellant returning to work, specifically that work reminds her of the work-related issues she experienced and that she decompensates after performing two hours a week.
In the Appeal Panel’s view there is no error in the Medical Assessor concluding, based on what the appellant does do in her volunteer work, that her impairment in employability is not total but is severe. The work that she does on a volunteer basis for two hours a week indicates, in the Appeal Panel’s view, that she has capacity in employability for two hours a week, which means that her function is severely limited and is not totally impaired.
The Appeal Panel notes that the appellant submitted the Medical Assessor’s reasoning process was not adequately exposed for the ratings he made. The Appeal Panel disagrees with that submission. The Appeal Panel considers the reasons the Medical Assessor detailed in the MAC, particularly in the PIRS rating form, exposed why he made the ratings he did, and indeed, the Appeal Panel considers his reasons have been cogently expressed.
The appellant also submitted that the Medical Assessor’s reasoning process “in making the s323 is not adequately exposed.” The Appeal Panel notes that the Medical Assessor did not find that the appellant had suffered any previous injury or had a pre-existing or abnormality. The Appeal Panel considers that the finding of the Medical Assessor is correct. Hence, there was no basis for the Medical Assessor to engage s 323.
For these reasons, the Appeal Panel has determined that the MAC issued on 16 May 2025 should be confirmed.
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