Neilsen v Nova Employment Ltd
[2025] NSWPICMP 647
•27 August 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Neilsen v Nova Employment Ltd [2025] NSWPICMP 647 |
| APPELLANT: | Cathy Maree Neilsen |
| RESPONDENT: | Nova Employment Limited |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Professor Nicholas Glozier |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 27 August 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal by claimant from 5% whole person impairment (WPI) assessment for psychological injury; whether Medical Assessor (MA) had erred in every classification for every category in the psychiatric impairment rating scale (PIRS); whether MA had erred in making a deduction pursuant to section 323 for a subsequent injurious event; Held – submissions called for regarding power of MA to make a deduction for subsequent impairment; observations made as to utility of the deemed date provisions; Bindah v Carter Hold Harvey Woodproducts Australia Pty Ltd, Jaffaire v Quality Castings Pty Ltd, Cullen v Woodbrae Holdings Pty Ltd, and Craigie v Faircloth & Reynolds Pty Ltd referred to; observations made as to role of section 22 of the Workers Compensation Act 1987 and whether principles in Secretary, NSW Department of Education v Johnson were applicable where subsequent employer subject to NSW compensation litigation; Bayside Council v Ware referred to; claimant re-examined; error determined in three categories; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 19 December 2024 Cathy Maree Neilsen, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ankur Gupta, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
4 December 2024.The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
(a) the assessment was made on the basis of incorrect criteria, and
(b) 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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 28 October 2024 this matter was referred to the Medical Assessor for an assessment of WPI caused by psychological/psychiatric disorder on a deemed date of 24 January 2018.
In his history, the Medical Assessor recorded the date of injury as 25 January 2018, but nothing turns on this discrepancy. However, he did not acknowledge that the matter had been referred as a deemed date.
Ms Neilsen was employed as an Employment Consultant with the respondent when “her boss” received a phone call concerning the conduct of a “client” who was in a nursing home. This client “Brandon”, had been apparently been placed in the laundry department as he had threatened to pull a knife if he was not allowed to go home. Brandon was intellectually disabled and, “more non-verbal”.
When Ms Neilsen attended, the client approached her with a knife in his hand, but she de-escalated the situation and was given the knife.
After that the Medical Assessor recorded that Ms Neilsen’s mental state “went downhill” at the way her employer treated her. She was harassed and bullied on the job after the incident and had to cease work after a few months.
The Medical Assessor recorded that Ms Neilsen “went through a few jobs after that”. She started two days a week in an administrative position in February 2019. “She worked in that position until May 2021”. She now works at the North Richmond Community Centre.
The Medical Assessor found that there was 6% WPI, from which he deducted 1/10th, leaving a combined table value of 5%.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it the worker should undergo a further medical examination in view of the errors made by the Medical Assessor as outlined below.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Further medical examination
Professor Nick Glozier of the Appeal Panel conducted an examination of the worker on
14 May 2025 and reported to the Appeal Panel.
Medical Assessment Certificate
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
Both parties made written submissions which have been considered by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
Appellant submissions
Ms Neilsen challenged the MAC on two grounds. She firstly alleged that the Medical Assessor had erred in every classification he made regarding each of the six classifications of the Psychiatric Impairment Rating Scale (PIRS). Secondly, she alleged that the apportionment of 1/10th deduction pursuant to s 323 of the 1998 Act was a demonstrable error.
The respondent agreed that the application of s 323 had been an error, and the Panel accordingly organised a re-examination with Professor Glozier.
Ground 1
It is convenient to firstly set out the principles relating to the application of the PIRS.
The Psychiatric Impairment Rating Scale
The PIRS is established as the rating system for assessing psychiatric/psychological impairment, by virtue of Chapter 11 of the Guides. Chapter 11 sets out six categories of behaviour to be considered, each being divided into five classes, ranging in seriousness from 1 to 5. Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired.
Chapter 11.12[1] provides:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
[1] Guides page 55.
The Medical Assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11.[2]
[2] See 11.15-11.21 at Guides page 65 and Table 11.7 at Guides page 66.
The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[3] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the AMS had been glaringly improbable. His Honour found that the Panel had fallen into jurisdictional error. He said at [23]:
“By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:
‘… the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’.
24. The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
25. The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales[4]. The Appeal Panel said ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’: Appeal Panel reasons at [37].”
[3] [2017] NSWSC 887.
[4] [2015] NSWSC 633.
In Glenn William Parker v Select Civil Pty Ltd,[5] another case regarding assessment of psychiatric disorder, Harrison AsJ cited [23] of Ferguson with approval at [65]. Her Honour said at [66]:
“In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense. (Ferguson [24])…..”
[5] [2018] NSWSC 140.
In Jenkins Garling J said at [73]:
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
It is accordingly necessary for the Panel to be satisfied that the assessment by the AMS in this category was erroneous in one of the following ways (to use the reference by Campbell J in Ferguson):
(a) if the categorisation was glaringly improbable;
(b) if it could be demonstrated that the AMS was unaware of significant factual matters;
(c) if a clear misunderstanding could be demonstrated; or
(d) if an unsupportable reasoning process could be made out.
In Lancaster v Foxtel Management[6] Basten AJ noted at [88-89] that these four considerations, although not inaccurate, were not a statement of legal principles, and that care should be taken in applying the explanation in place of s 327(3) and s 328(2).
[6] [2022] NSWSC 929.
It can be seen that in order to establish error in the classification of the six categories, an appellant must demonstrate that the rating was more than a mere difference of opinion on a subject about which reasonable minds may differ. As the error regarding a subsequent injury has caused there to be a re-examination, we note the following:
Self-care and personal hygiene
In this category Ms Neilsen did no more than criticise the comments made by the Medical Assessor, submitting that they merited a higher rating than the class 2 assessed. There was a semantic argument put that a class 3 impairment was appropriate because the Medical Assessor's had found that Ms Neilsen kept herself clean but showered every two days and cleaned her teeth once every two days as well. This was said to be a contradiction. It was also asserted that because Ms Neilsen’s weight had dropped and she relied on frozen meals, that the class 2 category was incorrect. However, a class 3 finding requires that the claimant could not live independently and that a visit by a family member two to three times per week was required to ensure a minimal level of hygiene and nutrition. The Medical Assessor did not make any incorrect finding as to fact and the class 2 rating was open to him.
Social and recreational activities
The Medical Assessor rated a class 2 finding rather than a class 3, that Ms Neilsen submitted was more appropriate.
She referred to comments by the Medical Assessor that:
“She has been on an international cruise holiday and enjoys seeing her children. She has made acquaintances with her co-workers and gets on well with them. Can go to the shops as needed. She has missed social events at her workplace and does not socialise with her friends as much as she used to.[7]
[7] Appeal papers page 40.
It was alleged that the reference to “been on an international cruise holiday and can go to the shops” ‘possessed no weight’.
The relevant descriptors for this category in Table 11.2 of the Guides 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 respondent submitted that Ms Neilsen was attempting to cavil with the clinical judgement of the Medical Assessor, which had been based on a comprehensive evaluation of Ms Neilsen’s social settings.
The Panel considered that the emphasis on Ms Neilsen’s one international cruise may have been misplaced by the Medical Assessor, who also referred to this event when considering the travel category. The history taken by him, that “[Ms Neilsen] went on an international cruise with her family…”[8] is not incompatible with a class 3 rating, as Ms Neilsen was with her family, and the cruise was, it would seem, a rare event.
[8] Appeal papers page 35.
Further, the reference to Ms Neilsen’s children was not germane to a person’s ability to go to social activities that are age, sex and culturally appropriate. That reference was more apposite to the category of social functioning.
The evidence disclosed otherwise that Ms Neilsen was quiet and withdrawn, as was shown by Ms Neilsen’s statement of 1 October 2024[9] and the opinion of her expert Dr Trevor Lotz, who found her “socially reclusive“ in his report of 15 August 2023[10], and assessed class 3. The expert retained by the respondent, Dr Bisht, also found a class 3 in this category on
11 March 2024, saying:“The client doesn’t attend social gatherings. However, the client is able to leave the place of residence, and is able to tolerate the company of the psychologist, GP, and close friends.”
[9] Appeal papers page 61.
[10] Appeal papers page 82.
Whilst it is trite to say that the function of a Medical Assessor “is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question”[11], the obligation to give adequate reasons– to set out “the actual path of reasoning” - nonetheless remains, and, as was stated in Vegan, the extent of the reasons will depend on the context. Where the experts on both sides of the record agree it is therefore incumbent on a Medical Assessor to explain why he/she disagreed.
[11] Wingfoot Australia Pty Ltd v Kocak [2013] HCA 43 at [47].
We accordingly found that the Medical Assessor made a demonstrable error, and that a re-examination was required in this regard to correct this.
Travel
As to travel it was submitted again that the class 1 rating was erroneous because of the matters the Medical Assessor himself had mentioned within the body of the report.
The appellant referred to the Medical Assessor's comments that she could go to the shops if needed, that she could drive locally and get to new places if she had to, and that she “does not think she could use public transport because she is scared of people”.
We were again referred to the opinions of the two opposing experts who both assessed class 2 in this category.
The respondent repeated its submission that Ms Neilsen was cavilling with the finding, and that the class 1 rating had been open to the Medical Assessor.
Our findings as to the failure by the Medical Assessor to adequately explain his reasoning in the face of the expert unanimity apply mutatis mutandis to his assessment in this category.
Social functioning
The Medical Assessor rated this category at class 3. He said:
“As described in the main body of the report, there is moderate impairment. She is close to her children but has separated from her husband because of her mental state.”
Ms Neilsen argued that a class 4 rating was appropriate. She did not allege that the Medical Assessor had made any factual errors, but simply repeated the Medical Assessor’s reasons and alleged that he should have rated this category at class 4. It was argued, for instance that the fact that Ms Neilsen’s marriage had “ended” made the class 4 rating more appropriate. However, the fact which the Medical Assessor relied on was that she was “separated” from her husband. The relevant descriptors are provided in Table 11.4 of the Guides:
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 (e.g. lost partner, close friends). Unable to care for dependants (e.g. own children, elderly parent).
The respondent submitted that Ms Neilsen was cavilling with the result, and that the class 3 rating was open to the Medical Assessor. We concur, with respect. There was no suggestion that Ms Neilsen was unable to care for her children, and although the descriptors are examples, and not strict criteria, the behavioural consequences of Ms Neilsen’s disorder do not extend to the general level indicated by the class 4 descriptors.
Concentration, persistence and pace
Ms Neilsen submitted that the Medical Assessor had erred by rating the category as a class 1.
We were referred to the Medical Assessor's comments:[12]
“As described in the main body of the report, there is a minor deficit attributable to variation in the general population. She works in a job that involves managing people’s payroll. She makes mistakes but very occasionally and her work performance is generally maintained. She has developed strategies to manage reduced focus. She takes medications regularly and pays the bills on time. There was no evidence of impaired concentration during the assessment either.”
[12] Appeal papers page 17.
We were also referred to further comments by the Medical Assessor:[13]
“She says she has trouble concentrating but has strategies to manage that at work by prioritising important tasks earlier in the day. She says that she can focus on TV for fifteen minutes “zones out” before eventually zones back in.”
[13] Appeal papers page 17.
These findings by the Medical Assessor depicted that the appellant experienced “significant issues” in this category. On his own findings, it was submitted that the Medical Assessor should have given a class 3 rating.
The respondent relied on the Medical Assessor’s finding that there was no evidence of impaired concentration during the assessment.
We note however that the Medical Assessor stated that his findings on examination were “not applicable.”[14] The template he was using referred to “Findings on physical examination”, but Medical Assessors commonly relate their findings at this point with the mental state examination. It is standard practice to record a mental state examination in a psychiatric assessment, and a mental state examination is in a broad sense, a physical examination, since it is also a record of the observable physical signs that support a psychiatric diagnosis.
[14] Appeal papers page 35.
Employability
Ms Neilsen submitted that the class 3 rating given by the Medical Assessor was also inadequate. The appellant referred to the Medical Assessor's comment:[15]
“As described in the main body of the report, there is moderate impairment. She can work less than 20 hours per week in a less stressful environment.”
[15] Appeal papers page 18.
We were also referred to his further comments in the body of his report:[16]
Ms Neilsen has maintained employment with the North Richmond Community Centre since 2021. She works as a financial administrator and manages the payroll. She works two days per week, some from home and some from the office. She works between 10 to 14 hours per week. She has not been able to increase it because of her mental state, but the job is going well.
[16] Appeal papers page 35.
Table 11.6 of the Guides provides:
“Class 3: Moderate impairment: cannot work at all in same position.
Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (e.g. less stressful).
Class 4: Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.”
Again the findings of fact by the Medical Assessor were said to justify a higher rating of a class 4.
The respondent submitted that the factual finding made of Ms Neilsen’s ability to work was limited to 10-14 hours per week, which was consistent with a class 3 finding.
The descriptors for class 3 and 4 are somewhat vague, and the boundary between the descriptors of two classes does not provide for a discrete classification of many cases purely on the basis of hours worked. The class 3 descriptor is particularly problematic as it has no lower boundary. If taken to its limit someone working only one hour per week in a different position could meet its requirement, yet clearly also match all class 4 descriptors Ms Neilsen is just such a grey area case. She working two days at a time, and her hours are considerably less than the 20 hours per week maximum stipulated by a class 3, but only slightly more than the 20 hours per fortnight provided by class 4. This vagueness is an example of the discretion that is given to a Medical Assessor by Chapter 11.12 of the Guides.
However the Medical Assessor did not give reasons for why he ascertained class 3 when the facts appeared much closer to the descriptors of a Class 4.
Ground 2
In taking the history at [4] of the MAC, the Medical Assessor took the following history:[17]
“…She started two days per week in an administrative position in February 2019. She worked in that position until May 21. She says that an employer could not open up his pay slip and got verbally abusive with her as she managed the payroll. He even got a hammer and smashed his own car. She says that she used to sit in a corner and felt that she could not escape and it aggravated her emotional symptoms….”
[17] Appeal papers page 34.
The Medical Assessor, in explaining his calculations said, after surveying the evidence that was before him:[18]
“I concur with the treating psychiatrist, Dr Malik, and independent psychiatrist, Dr Lotz, that Ms Neilsen is experiencing PTSD, but I believe the event of 24 January 2018 is not the sole causative factor. Whether the incident on that date was of sufficient severity to meet the diagnostic criteria for PTSD remains debatable. However, the event in May 2021, as detailed in section 4, compounded the trauma from 24 January 2018 and ultimately met the threshold for a PTSD diagnosis."
[18] Appeal papers page 38.
In explaining why he had made a deduction of 1/10th, the Medical Assessor said:[19]
“Although there was no pre-existing condition, Ms Neilsen experienced a significant exacerbation of her symptoms following a further violent incident at her workplace in May 2021. Consequently, it is reasonable to attribute a degree of impairment to subsequent non-work-related factors.”
[19] Appeal papers page 38.
The final submission made by the appellant was that the Medical Assessor had fallen into error in making a 1/10th deduction for an impairment he found had occurred subsequent to a later injury. Relevantly, Ms Neilsen submitted that the Medical Assessor had failed to “uphold documentary obligations”.
The respondent submitted that, as there was no error in the 6% WPI found, there was no utility in considering this error, as even with the 1/10th restored, Ms Neilsen could not meet her 15% threshold for entitlement.
The Panel is satisfied that indeed the Medical Assessor has made a demonstrable error in the manner in which he has explained the reason for the deduction made of 1/10 pursuant to s 323 of the 1998 Act.
It is well settled that the terms of the referral describe the parameters within which the Medical Assessor must make his assessment. The question of causation has already been determined by that process and unless the parties can demonstrate that what appeared in the referral was not the medical dispute that they intended to be decided, it is beyond a Medical Assessor's power to make comments about causation.[20]
[20] Skates v Hills Industries Ltd [2021] NSWCA 142
In this case the Medical Assessor has found that there was a second injury with a different employer at a later point of time, May 2021. A number of questions potentially arose regarding the implications of this finding and the Panel called for submissions in the following direction:
“Whilst the Panel has determined that a demonstrable error has occurred within the Psychiatric Impairment Rating Scale categories and that the appellant should therefore be re-examined, there are a number of additional issues which may also vitiate the MAC and indeed require a re-examination on further matters of fact. We accordingly call for submissions as to the following matters:
(a) the significance (if any) of the failure by the Medical Assessor to identify that the injury referred to him was described as a “deemed” date of injury;
(b) whether the Medical Assessor’s finding regarding causation at [10c] of the MAC was part of the medical dispute that had been referred to him;
(c) If not, whether the finding of fact as to the injury therein identified was necessary for the performance of the Medical Assessor’s function pursuant to s 319 of the 1998 Act?
(d) If so, whether s 22 of the 1987 Act should be applied or whether the methodology applied in State Government Insurance Commission v Oakley (1990) 10 MVR 570; [1990] Aust Torts Reports 81-003 was applicable, in view of paragraph 65 of the judgment of Emmett AJA. In Secretary, NSW Department of Education v Johnson [2019] NSWCA 321.”
The re-examination was requested in the same direction, and the findings of Professor Glozier has rather rendered these enquiries otiose, as he found that the event in 2021 had been a temporary aggravation, as will be seen.
Written submissions were received from both parties, and we make the following comments regarding them.
The significance (if any) of the failure by the Medical Assessor to identify that the injury referred to him was described as a “deemed” date of injury
Ms Neilsen submitted that the question of the date of injury was irrelevant, confining its submission to s 15 of the 1987 Act and ignoring s 16 which relates to the aggravation exacerbation acceleration or deterioration a pre-existing disease. It also failed to mention
s 4(b) of the 1987 Act, which defines a disease injury.The respondent submitted that to treat the date of injury as not being deemed in the current dispute was of no significance.
It is, with respect, incorrect to describe this issue as irrelevant. Its original utility was probably based on the way the previous compensation scheme operated prior to the amendments that created the Workers Compensation Commission in 2002. The prior scheme involved many different insurers, and the disease provisions by which a date of injury was deemed to have occurred, was a practical way of determining liability - rather than have multiple parties argue that their particular period of risk was minimal in the apportionment of liability. The deemed date of injury created the fiction of making the last employer on risk for the whole of the period of a disease process. With the advent of the current system such a fiction is no longer necessary, as there is usually only one insurer.
However, the issue has some relevance regarding the application of s 323 of the 1998 Act. It is not relevant in the current case, as there has been no suggestion that Ms Neilsen had a relevant pre-existing condition, but a deemed date has the effect of setting the relevant date for the enquiry as to whether a pre-existing condition existed at the commencement of an injured persons employment.[21]
Whether the Medical Assessor’s finding regarding causation at [10c] of the MAC was part of the medical dispute that had been referred to him
[21] See Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1415 and Craigie v Faircloth & Reynolds Pty Ltd [2021] NSWSC 1121
Ms Neilsen submitted that under the circumstances in which the Medical Assessor purported to justify his deduction by reference to s 323, he had no power to do so when he was referring to a subsequent incident. We were referred to s 319(d) of the 1998 Act and it was submitted that other than an impairment caused by a pre-existing condition, a Medical Assessor was not entitled to make any apportionment. Ms Neilsen submitted that he had not been asked in the referral to assess a subsequent injury, and neither was the existence of such a subsequent injury part of the medical dispute, as we understood the submission.
The respondent submitted that it was open to the Medical Assessor to make findings regarding causative factors. We were referred to s 319(c) of the 1998 Act in this regard. Accordingly the respondent submitted that the Medical Assessor was lawfully discharging his duty by finding that a supervening causative event had made a contribution to the impairment caused by the subject injury.
Section 319 provides:
"‘medical dispute’means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim-
(a) the worker's condition (including the worker's prognosis, the aetiology of the condition, and the treatment proposed or provided)
(b) the worker's fitness for employment
(c) the degree of permanent impairment of the worker as a result of an injury
(d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion
(e) the nature and extent of loss of hearing suffered by a worker
(f) whether impairment is permanent
(g) whether the degree of permanent impairment of the injured worker is fully ascertainable.
It can thus be seen that a medical dispute includes by s 319(c) the degree of permanent impairment caused by an injury. Whilst s 319(d) specifically authorises a deduction to be made regard to any proportion of impairment that is due to any of the prior conditions therein set out, Ms Neilsen was, with respect, incorrect to submit that a Medical Assessor’s power was thereby limited. It is now settled law that a Medical Assessor is able to make causative findings within the parameters set out by s 319.[22] Accordingly, the Medical Assessor’s consideration of whether a subsequent event had contributed to the current WPI caused by the subject injury was part of his function, notwithstanding that the 2021 incident had not been included in the referral.
If not, whether the finding of fact as to the injury therein identified was necessary for the performance of the Medical Assessor’s function pursuant to s 319 of the 1998 Act?
[22] Bindah v Carter Hold Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 from [109] per Emmett JA: Jaffaire v Quality Castings Pty Ltd [2018] NSWCA 88 at [80-81]; See also Bayside Council v Ware [2023] NSWPICMP 576.
Ms Neilsen accepted that the Medical Assessor was required to assess pre-existing impairment pursuant to s 319 but did not comment on whether the findings of fact as to a subsequent impairment in 2021 was also necessary.
The respondent submitted that the question was not applicable. In fact we assume that, consistent with its earlier answer, it agreed with this proposition.
If so, whether s 22 of the 1987 Act should be applied or whether the methodology applied in State Government Insurance Commission v Oakley (1990) 10 MVR 570; [1990] Aust Torts Reports 81-003 was applicable, in view of paragraph 65 of the judgment of Emmett AJA. In Secretary, NSW Department of Education v Johnson [2019] NSWCA 321.
Ms Neilsen submitted that s 22 did not apply and that the Oakley principles were applicable. Applying them would result in a finding, she submitted, that no apportionment should take place.
The respondent kindly set out the terms of s 22 and submitted that the section, and/or the principles in Oakley, as enunciated in Secretary, NSW Department of Education v Johnson[23] were applicable. The respondent submitted that as no claim had been duly made regarding the 2021 incident, s 22 had no application. It argued that the provisions of section 322(2) or (3) were predicated on the establishment of an “injury” pursuant to s 4 of the 1987 Act.
[23] [2019] NSWCA 321.
Because the question of injury had not been determined with regard to the 2021 incident the impairments could not be assessed together and indeed the employer might not have had an opportunity to respond to any claim thus, as we understood the submission, suffer prejudice.
The only injury before the Medical Assessor was that of 24 January 2018, and consequently only impairment arising therefrom was compensable, Accordingly that was the only injury which had “application to section 22 of the 1987 Act and/or section 322 of the 1998 Act.”
Section 22 of the 1987 Act provides relevantly:
“22 Compensation to be apportioned where more than one injury
(1) If-
(a)the death or incapacity of a worker, or
(b) a permanent impairment suffered by a worker as referred to in Division 4 of Part 3, or
(c) a liability under Division 3 of Part 3 to a worker,
results from more than one injury to the worker, liability to pay compensation under this Act is to be apportioned in such manner as the Commission determines…”
Section 322 of the 1998 Act provides relevantly:
“322 ASSESSMENT OF IMPAIRMENT
(1) The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose.
(2) Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.
(3) Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.
Note: Section 65A of the 1987 Act provides for impairment arising from psychological/psychiatric injuries to be assessed separately from impairment arising from physical injury.”
We doubt that s 322 is applicable, as the Medical Assessor’s function is to assess the referred injury of 24 January 2018, and not any other. As part of that assessment, the Medical Assessor identified a subsequent injurious event, to which he attributed some of the permanent impairment he assessed on the day Ms Neilsen was interviewed,
28 November 2024.It was within his remit to apportion the contribution that arose from the 2021 event, but the question is whether the principles in Johnson should be applied. The call for submissions on this point was quite specific, as it referred to paragraph [65] of the decision. Paragraph 65 stated (per Emmett AJA, Macfarlan JA and Simpson AJA agreeing):
65. “Section 22 of the Compensation Act deals with the question of permanent impairment suffered by a Worker that results from more than one injury to the Worker. Under s 22(1)(b), liability to pay compensation is to be apportioned in such manner as the Commission determines. However, s 22 has no operation in the present circumstances since Hostels is not amenable to the Compensation Act or the Management Act. Rather, the entitlement of the Worker to compensation in respect of the Second Injury is regulated by Commonwealth legislation.”
It would thus appear that the remarks of the Court of Appeal in endorsing the approach adopted in Oakley apply only where the subsequent employer is not covered by the NSW workers compensation legislation. This question will have to abide a different set of circumstances, as we differ from the Medical Assessor’s finding that the 2021 event was causative of any of the current WPI following the re-examination by Professor Glozier, whose report follows:
Matter Number: | M1-27091/24 |
Appellant: | Cathy Neilsen |
Respondent: | Nova Employment Limited |
Date of Determination: | 14 May 2025 |
Examination Conducted By: | Professor Nicholas Glozier |
Date of Examination: | 14 May 2025 |
1. The worker’s medical history, where it differs from previous records
Ms Neilsen confirmed that she had experienced many incidents of stressful experiences, bullying behaviour and harassment at the hands of her manager over her years of employment at Nova. Several times today she repeated that she was aggrieved that she had received no formal training in managing people with behavioural disturbance, intellectual disability or mental health problems and that this reflected her employer’s lack of duty of care. She was also aggrieved that on the day of the incident with Brandon on 25 January 2018 her boss had been called by the nursing home where Brandon worked and her boss, Cathy, had asked her to go instead. She said that the boss knew he had a knife and did not believe that she was supportive. Whilst she had been Brandon’s officer helping him find a job, she was aware he did not like this job and was not his current support officer.
I explored the incident. She said, as in her statement, that when she got to the nursing home, Brandon was already with his sister, Cass. In her statement she records that Cass told her that Brandon had pulled a knife on the staff. She said that she asked Brandon ‘where is the knife?’ to which he responded ‘here.’ ‘He was holding the knife by his side and I ordered him to hand the knife to me. He obliged and handed me the knife’ which was a small sharp paring knife’. I note in her statement she makes no suggestion that this was threatening towards her per. However today she said that he was ‘waving it around’ and although she notes that her life was not threatened, she felt it possibly was threatening. She has ‘run this over and over in my mind’. As such this would appear in some way to be possibly a post-hoc reconstruction of the potential threat that might have been there at the time compared to when she wrote her statement. Regardless, she still feels this was a significant incident and that the events around it compounded her sense of grievance with the other behaviours at Nova.
She continued working for another three months. After having made the complaint she said that she was asked to move to the head office at St Marys, was told not to have contact with her clients, business, or use NovaNet and thus would just be doing ‘menial tasks.’ She said today that she believed that Cathy should have been the one to have been moved, particularly as there had been previous issues with her being accused of bullying and feels aggrieved that she was the one who was ‘penalised’ for what she believes was Cathy’s behaviour.
As such this corroborates the idea of a ‘deemed date of injury’ with numerous incidents and behaviours perceived as harassing, bullying etc over many months and years at Nova at the hands of her boss. NB: I note that the original claim from did not identify the injury had a deemed date in the tick-box on page 5, which gives the very specific date of “24.1.2018.” Conversely I note the referral to the Medical Assessor stated that this date was in fact a ‘deemed date.’ I cannot account for this discrepancy.
Treatment and subsequent health
Ms Neilsen reports she has not seen her psychiatrist for many months and just gets her medication from her GP. She is not even sure if she has a further follow-up appointment. She is not receiving any psychological support or counselling. She sees her GP regularly for her medications which remain as they have done for a very long time, without any significant improvement: Venlafaxine 225mg mane and Quetiapine 25mg nocte. She takes an over-the-counter Kava powder to help her sleep.
She reports little motivation for any other wellbeing activities. She says she does no physical activity at all, not even going for walks although many years ago would go to the gym. She does not specifically manage her diet but neither described a poor diet, e.g. eating regular pre-prepared meals which she orders online and not necessarily missing meals. She described no other wellbeing activities e.g. mindfulness, relaxation, yoga etc, but would just spend many hours playing on a game on her phone (one similar to Candy Crush). She described these limitations as due to amotivation rather than cognition.
She reported that she had had a fundoplication early last year which has helped with her GORD. She is no longer in follow-up from the upper GI surgeon.
2. Additional history since the original Medical Assessment Certificate was performed
Ms Neilsen left her husband over a year ago. She said they weren’t getting on and she moved out of the home, in part because she did not have the financial resources to continue to pay the mortgage. He stayed there. They are still only a year in and things are still difficult e.g. they find it hard to have conversations without it becoming tense and argumentative. She took the family car; he has her company car. She has remained independent, looking after herself ever since with no need for any support. On the days where she has to go to work, she prepares herself adequately, showers, dresses, etc. On other days she may be less concerned about her appearance. Occasionally this is mentioned by a family member but she does not require prompting. She eats regular meals and reported no weight loss or gain. However she reports she does not often have the motivation to cook. She will take in lunches to work or sometimes just have ‘chips.’ She is responsible for the house care of her small one-bedroom flat that she moved into. She however is very security-conscious now, always making sure everything is locked at night.
She was going to bed quite late but now has been trying to go to bed earlier, between 9:30pm and 10pm. Although she goes to sleep easily with the Seroquel with no onset insomnia, she wakes every other night from a nightmare or arouse, at times sweaty. This often has a focus on the incidents at work and has a recurrent one of Brandon in hiding. She usually returns to sleep and in fact often sleeps past her alarm at 7am, not getting up until 8am if she doesn’t have to go to work because she feels she sleeps more heavily then. As such she generally gains a normal sleep duration although there are some nights where she does not. She has a poor sleep efficiency with middle insomnia.
She finds herself ‘running over the incidents in my mind.’ She said she has gone over the incidents ‘a thousand times.’ However at times, particularly at night, these can have a re-experiencing quality, particularly the incident with Brandon. She says at other times she tries to go over it and recall the way she feels she was treated, particularly by Cathy. This is also compounded by her various grievances about how she feels she should have been trained etc and that they failed in her duty of care.
She describes herself as being generally much more anxious now. She says she doesn’t trust people and fears that they may harm her although knows that rationally this is highly unlikely. At times when she does go out, e.g. when she was in IKEA a couple of weeks ago with her sister, she had a panic attack and described this fully. She can be quite aroused when out in public and so tries not to go to the shops very often. She does her shopping online.
She has withdrawn from most of her friends and really only sees members of her extended family e.g. her cousin’s sister. They will come to see her, or take her out to do things but she has really lost most of her social activities. Her only other hobby is of patchworking.
Although she can drive locally, and described only a minor hyperarousal when driving, she says she is too anxious to drive to Bilpin or Forster where her son and daughter live respectively. She has not flown for many years and has never liked flying and also says that the same is somewhat true of public transport but this has been compounded such that she now fears that she would not be able to get out of a train if she were on it, and thus would feel somewhat trapped.
She said her boss at the new work has been incredibly supportive and at times when she is feeling poor, may even allow her to work from home or is tolerant if she occasionally arrives late. She has a reasonable relationship with a woman that she shares an office with. She has a good relationship with her sister and with her own children although they live some distance now. She last saw the grandchildren when they came down to see her about a month ago. She regularly Facetimes them and enjoys seeing them on the Facetime and described this as one of the few things she enjoys beyond her TV shows and games.
She says she spends much of the time watching TV or playing games but does not particularly binge-watch, currently watching various reality shows. Financially she is maintained only on the two days a week of her admin role at a community centre. She uses various financial software that she has used for many years, e.g. Xero, does admin, accounts, reconciliation. She does not describe there has been any performance issues at work although says that subjectively she has some issues with memory and focus.
As above, she works two days a week at a community centre, and has been unable to increase hours. She occasionally gets anxious and aroused there, e.g. when someone who she found quite confronting came in for a needle exchange a few weeks ago and went into their office. However this has not led to any decompensation.
3. Findings on clinical examination
Ms Neilsen was casually-dressed, showing no signs of being unkempt and the small one-bedroom unit behind her was not in disarray. She reported perceptions that she was not able to focus and recall things but then immediately having said this, then did so, e.g. names of medications, types of operations etc, reflecting her negative self-view rather than cognition per se. Again, although her perception was of not being able to focus as well, she was actually a detailed historian and on exploring the issues around the events at work, gave both very complex answers and also evaluated the degree of threat posed, could challenge this and when going over this, spent some time showing good focus and concentration. As such, there was no overt objective concentration or focus difficulties in the assessment and she showed no difficulty with the pace of assessment nor required any breaks. She describes an ‘up and down’ mood with reduced enjoyment but not anhedonia. She has broken sleep and a poor sleep efficiency although normal sleep duration, possibly with some slight over-sedation in the morning. She can be anergic, particularly in the morning and describes reduced motivation particularly in any social or demanding event. She has got reduced stress tolerance, heightened security behaviours, a mild degree of hyperstartle, social arousal and at times frank panic attacks with full-blown criteria. She occasionally has re-intrusive phenomena of events although I am not entirely convinced that this event met the Criterion A demands and has settled into a somewhat avoidant pattern, reducing these levels of arousal, with a general level of background distress.
4. Results of any additional investigations since the original Medical Assessment Certificate
Not applicable.
Summary
Ms Neilsen probably meets the criteria for post-traumatic stress disorder. She certainly has the symptoms of this, although as above I am not 100% convinced that her incident as related both in her statement, and even today, would meet the criteria required under DSM-5 for an exposure to ‘actual or threatened death, serious injury or sexual violation’ as defined in the DSM-5. She also has symptoms sufficient to meet the criteria for both a Major Depressive Disorder with Anxious Distress, and panic disorder. This latter disorder certainly arose in the context of long-term adverse behaviours undermining her confidence, self-esteem and leading to heightened anxiety and arousal as well as the associated low mood and symptoms of depression.
I confirm that the assessment today and the extra history elicited, as well as reviewing the evidence, would not disturb the classes assigned by the MA for self-care and personal hygiene, social function, and concentration.
In terms of social and recreational activities, Ms Neilsen describes mainly solitary activities of a bit of patchwork and watching TV. She really only goes out when prompted or accompanied by a family member or close friend, has withdrawn from her friends and only rarely does so. This exactly matches the criteria for a class 3 social impairment.
In terms of travel, she reports being too anxious and nervous to travel to see her son and daughter and grandchildren in other parts of New South Wales due to her anxiety, although she can travel locally – e.g. to and from work and travel to the shops (even if she prefers to avoid people when there) – this is a class 2 mild impairment.
In terms of employability, she is working significantly less than 20 hours a week, a maximum of two days a week, in an admin role with some financial tasks. This is less stressful than her previous role handling clients with disabilities and she has shown that she has been unable to increase her hours beyond two days a week, despite the financial constraints that this entails. At times she needs to work from home if overly symptomatic leading to unpredictable attendance. This is a severe, class 4, impairment.
As conceded by the Respondent, there is no evidence either of a significant pre-existing psychiatric condition and the deduction for the subsequent events at Blue Steel are not warranted. This event merely led to a temporary aggravation of her symptoms which were already present and did not cause any further deterioration in her impairment. This aggravation was also recorded by the Medical Assessor. Moreover I can find no mention of either this incident or any impact in the contemporaneous notes of her treating psychiatrist in 2019 or his reports. He describes a similar clinical presentation throughout 2019, and her working the same 16-18 hours per week that entire year.
We adopt Professor Glozier’s report. We confirm that the Medical Assessor was diverted in his assessment of social and recreational activities by the fact that Ms Nielsen had been on an international cruise, but had not taken into account that she had been with her family, and that it was a rare event. The reference to her enjoyment when seeing her children was not relevant to this category, but to social functioning.
The class 1 rating for the travel category was contrary to the Medical Assessor’s own findings, and again he was diverted by the fact that Ms Neilsen took an international cruise. Such was not incompatible with a class 2 rating, and the preponderance of the evidence – including the unanimous view of the opposing experts – favoured a class 2 rating.
As we noted when discussing the submissions, the descriptors for the employability category were somewhat fluid in their descriptions, and the rating depends on the view of the assessing medical expert, as, to cite Ferguson, above, ‘the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’.
For these reasons, the Appeal Panel has determined that the MAC issued on
4 December 2024 should be revoked, and a new MAC should be issued. The new certificate and amended PIRS Rating Form are attached to this statement of reasons.
Table 11.8: PIRS Rating Form
| Name | Ms Cathy Maree Neilsen | Claim reference number (if known) | W27091/24 |
| DOB | Age at time of injury | 43 Years | |
| Date of Injury | 24 January 2018 | Occupation at time of injury | Employment Consultant |
| Date of Assessment | 28 November 2024 | Marital Status before injury | Married |
| Psychiatric diagnoses | 1. possible PTSD | 2.Major Depressive Disorder with Anxious Distress |
| 3. Panic disorder | ||
| Psychiatric treatment | Venlafaxine 225mg and Quetiapine 25mg | |
| Is impairment permanent? | Yes |
| PIRS Category | Class | Reason for Decision |
| Self Care and personal hygiene | 2 | As described in the main body of the MAC, there is mild impairment. She keeps herself clean but showers once every two days. She cleans her teeth once every two days as well. She does not need any prompting to eat and gets frozen meals on her own volition. |
| Social and recreational activities | 3 | See reasons herein |
| Travel | 2 | See reasons herein |
| Social functioning | 3 | As described in the main body of the MAC there is moderate impairment. She is close to her children but has separated from her husband because of her mental state. |
| Concentration, persistence and pace | 1 | As described in the main body of the MAC, there is a minor deficit attributable to variation in the general population. She works in a job that involves managing people's payroll. She makes mistakes but very occasionally and her work performance is generally maintained. She has developed strategies to manage reduced focus. She takes medications regularly and pays the bills on time. There was no evidence of impaired concentration during the assessment either. |
| Employability | 4 | See reasons herein |
| Score | Median Class | ||||||
| 1 | 2 | 2 | 3 | 3 | 4 | = 3 | |
Aggregate Score Impairment Total %
| 1 | + 2 | + 2 | + 3 | + 3 | +4 | 15 | 15% |
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W27091/24 |
Applicant: | Cathy Maree Neilsen |
Respondent: | Nova Employment Limited |
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 Dr Ankur Gupta 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) |
| Psychiatric / psychological | 24 January 2018 | Chapter 11 | N/A | 15% | Nil | 15% |
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
0
8
0