Pang v IBM Australia Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Pang v IBM Australia Ltd [2025] NSWPICMP 394
APPELLANT:	Rosa Wing Shan Pang
RESPONDENT:	IBM Australia Ltd
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Professor Nicholas Glozier
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	4 June 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); assessment of primary psychological injury; worker appealed assessments in the scales of concentration, persistence and pace and employability; Held – no error in assessment of concentration, persistence and pace; Medical Assessor erred in assessment of employability; MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 7 March 2025 Rosa Wing Shan Pang (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Wayne Mason (Medical Assessor), who issued Medical Assessment Certificate (MAC) on
7 February 2025.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The appellant suffered an injury on 30 June 2019 in her employment as a Senior IT Certified Specialist with IBM Australia Ltd (the respondent).
The appellant lodged an Application to Resolve a Dispute in the Personal Injury Commission (Commission) dated 31 July 2024 in which she claimed lump sum compensation in respect of the psychiatric injury.
In a Certificate of Determination – Consent Orders dated 25 November 2024, Member Michael Moore made orders including the following:
“3. I remit this matter to the President for referral to a medical assessor pursuant to section 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows:
a. Date of Injury: 30 June 2019
b. Body systems/parts: Psychological/psychiatric
c. Method of Assessment: Whole person impairment.”
The Medical Assessor examined the appellant on 19 December 2024 and assessed 8% whole person impairment (WPI) in respect of a psychiatric condition. The Medical Assessor deduced on tenth pursuant to s 323 of the 1998 Act, which resulted in a total of 7% WPI as a result of the injury on 30 June 2019.

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 because there was sufficient information upon which to make a determination.

EVIDENCE

Documentary evidence

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

Medical Assessment Certificate

The 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. They are not repeated in full but have been considered by the Appeal Panel.
The appellant’s submissions include the following:
(a)    ground 1 - concentration, persistence and pace - the Medical Assessor assessed the appellant as falling within Class 2 (i.e. mild impairment) in this category, whereas the circumstances of the appellant indicate that she falls within Class 3 (i.e. Moderate Impairment);
(b)    in respect of the Class 2 descriptors there is no evidence of the appellant’s having undertaken, or being able to undertake, a retraining course or a standard course. Similarly, there is no evidence of the appellant’s focusing on intellectually demanding tasks for periods of up to 30 minutes. The Medical Assessor does not suggest that there is evidence that the appellant can attend to any of the activities referred to as descriptive of Class 2 in this category;
(c)    the Medical Assessor’s assessment in this category is in conflict with his own assessment that the appellant is severely impaired in the category of employability, the area of functioning which is dependent upon the capacity to maintain concentration, and to focus and persist with attending to completion of assigned tasks;
(d)    the reasons in the MAC for the Medical Assessor’s assessment of mild impairment do not accord with the descriptors of that class. The details would support an assessment of moderate impairment, in accordance with the descriptors for that class;
(e)    none of the evidence, including that recorded by the Medical Assessor, suggests that the appellant has the capacity to read more than newspaper articles, follow complex instructions, type long documents, or follow a pattern. This significant level of incapacity explains why she cannot work;
(f)    the Medical Assessor has not contested any of the factors identified by Dr Rastogi, all of which support a Class 3 assessment. A Medical Assessor is required to provide reasons as to why his opinion differs from the other medical opinions. He has not provided any basis for differing from the opinion of Dr Rastogi;
(g)    the Medical Assessor has treated the appellant’s responses to his questions as overriding all of the evidence of her deficits in daily functioning in this category. In misdirecting himself in this manner, the Medical Assessor has ignored the indicators in the Psychiatric Impairment Rating Scale (PIRS);
(h)    the various classes of impairment in this category pertain respectively to the injured person’s ability to function independently in embarking upon and persisting with specific tasks, which may vary in complexity, and maintaining concentration in order to achieve a particular outcome in the performance thereof. The evidence simply does not support the conclusion that the appellant is able to attend to any of the foregoing activities given as examples in Class 3;
(i)    the Medical Assessor has misdirected himself in departing from the enquiry expected of him, i.e. to find an appropriate class of impairment having regard to the guidance provided in the PIRS descriptors. He has, instead, treated a single encounter in which he exercised control over the appellant, determined the subject matter and questions to be asked, and determined the duration of process, as reflective of the appellant’s capacity to attend independently to the variety of activities referred to by the authors of the PIRS as being relevant to the questions of concentration, persistence and pace to be exercised by the appellant in attending to activities at her own discretion;
(j)    the appellant’s answers to a series of questions posed by the Medical Assessor, cannot reasonably be considered to represent her capacity to independently maintain concentration in attending, of her own volition to time consuming tasks and to independently maintain concentration in endeavouring to cope with the complexity of various tasks and the time required to complete them. That capacity to respond to questions, and to draw from information she can recall, is irrelevant to the issue of whether she can, outside of the process conducted by the Medical Assessor, attend to tasks without direction on her own which require concentration and persistence, and execution at an appropriate pace;
(k)    the Medical Assessor has failed to appreciate the abnormal power dynamic which compels the appellant to present herself at his rooms and to submit to questions devised by him, with reference to subject matter as determined by him, and for as long as he considers necessary. That setting does not involve any of the considerations which apply to whether a person with a psychological injury is able, in attending to activities in the course of day-to-day living, to independently and voluntarily maintain concentration for periods of sufficient duration to enable completion of particular activities as described in the PIRS;
(l)    the Medical Assessor has committed demonstrable errors in ignoring the evidence of the appellant’s true impairment, failing to have regard to relevant descriptors of the PIRS which are consistent with an assessment of Class 3 having regard to the appellant’s deficits, and in treating the abnormal and momentary setting of his encounter with the appellant as the overriding basis for his assessment in the category of concentration, persistence and pace. The Medical Assessor should have assessed that Class 3 applied in this category;
(m)     ground 2 – employability - The Medical Assessor assessed the appellant as having limited capacity for employment, and as falling within Class 4 (i.e. Severe Impairment) in this category. His assessment is demonstrably erroneous and at odds with the preponderance of medical opinion, as provided by Dr Rastogi (the appellant’s medico-legal examiner), Dr Bisht (the appellant’s treating psychiatrist), Dr Lim, Dr Mo and Dr Calvache-Rubio (the appellant’s treating GPs), and Dr Blakemore (the insurer’s medico-legal examiner);
(n)    Dr Rastogi (at ARD 55), when providing her assessment of Class 5 in the category of employability on 26 August 2020 also confirms the appellant’s significant impairment in the category of concentration, persistence and pace.
(o)    the Medical Assessor did not acknowledge Dr Rastogi’s opinion regarding the appellant’s lack of capacity for work, or her reduced and erratic pace and her deficits in cognitive functioning;
(p)    Dr Bisht, the appellant’s treating psychiatrist, examined the appellant regularly from 3 February 2020 to 24 June 2024 repeatedly recorded that the appellant was “very depressed”, a diagnosis that is obviously incompatible with employment. Dr Bisht was of the view that the appellant “has not had any capacity for work since the termination of her employment”. Dr Bisht is plainly most reliably placed to comment on the appellant’s capacity for employment, given his regular examination and assessment of her over a period of in excess of four years;
(q)    the Medical Assessor noted that Dr Bisht considered the appellant to be totally incapacitated for work. He did not however explain why he did not accept Dr Bisht’s opinion, particularly given Dr Bisht’s regular review of the appellant’s functioning;
(r)    Dr Lim, Dr Mo and Dr Calvache-Rubio all certified the appellant as having no capacity for employment;
(s)    Dr Blakemore, who examined the appellant on behalf of the insurer’s legal representatives on 9 October 2024 recorded in his report dated 15 October 2024 that the appellant “appears incapacitated still for all work as a result of her psychiatric condition”;
(t)    the Medical Assessor’s classification of the appellant’s impairment in the category of employability is misconceived. It is obvious that the appellant’s profound deficits in concentration, persistence and pace render her incapable of attending to the responsibilities of real and paid employment which require compliance with directions, and the completion of designated tasks at a pace consistent with commercial demands. Nobody has suggested that she has any capacity to secure and retain employment. No real job has been identified;
(u)    the Medical Assessor’s reliance on the appellant’s trust of animals in support of a conclusion of employability is absurd. As he noted, she “is able to trust animals but not humans”. The fact that the appellant enjoys taking her parents’ dog for a walk is no indicator of capacity to engage in employment. The example referred to by the Medical Assessor is of interaction between the appellant and two of the few humans she can trust;
(v)    moreover, there is no detail of how often, and for what duration the appellant walks her parents’ dog. At best, she was noted by the Medical Assessor to see her parents “twice weekly”, but there is no record of whether she walks the dog each time she visits. That, in any event, does not provide a basis to assume capacity for employment contrary to all who have treated her, and the medicolegal consensus provided by Dr Rastogi and Dr Blakemore;
(w)   the Medical Assessor failed to consider and address the extent of the appellant’s weekly capacity for employment. Class 4 contemplates not more than “one or two days at a time” and “less than 20 hours per fortnight”;
(x)    in the circumstances, the Medical Assessor should have assessed that Class 5 applied in the category of employability, i.e. the appellant is totally impaired for employment, and
(y)    in the circumstances, it follows that the Medical Assessment Certificate contains demonstrable errors and reveals incorrect criteria in the assessments made in respect of impairment in the categories of concentration, persistence and pace, and employability. The MAC should be revoked and substituted with a Certificate pursuant to objective assessment of impairment by the Appeal Panel in accordance with the PIRS.
The respondent’s submissions include the following:
(a)    ground 1 – the appellant contends that the Medical Assessor applied the wrong classes in two categories of the PIRS, namely, concentration, persistence and pace and employability. The same issue infects the entirety of the single appeal ground, namely, that it amounts to mere cavilling. The boundaries between the different classes within the PIRS are not bright line boundaries; Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633 [56];
(b)    any question of which of the classes a worker falls into is a question of clinical judgment, and disagreement about that judgment does not disclose a basis for appellate intervention; Specialist Diagnostic Services Pty Ltd v Naqi [2020] NSWSC 1791 [122]. As to the impermissibility see State of New South Wales (Ambulance Service of NSW) v Thomas [2021] NSWPICMP 86;
(c)    if reasonable minds may differ, the appeal only involves cavilling; Zveglic v DJS Qualicoaters Pty Ltd [2021] NSWPICMP 62. It is not a coincidence that the alleged error for which the appellant contends in relation to each of the PIRS categories impugned that she submits that the correct classes are 3 and 5 respectively as between ‘concentration, persistence and pace’ and ‘employability’, which are exactly what Dr Rastogi had found to be applicable (Dr Rastogi provided appellant’s medico-legal assessment);
(d)    there is a structural problem in the appeal. Paragraph [9] of her submissions says that because she is severely impacted in relation to employability, there is a conflict in saying she is not similarly impacted in relation to concentration, persistence and pace. That is a non sequitur. Each category of PIRS is in the nature of delegated legislation and must be applied by reference to the criteria separately. To simply translate findings from one category to another would be the opposite of what occurred here and would be erroneous and appealable. In any event, the Medical Assessor did not err;
(e)    ground 1 - concentration, persistence and pace - a major part of the process a Medical Assessor must consider is his/her own observations of the worker during the examination. A Medical Assessor is entitled to apply clinical judgment to what is observed. The section of the Medical Assessor’s reasons concerning the examination findings is completely legitimate and it is, by itself, an ample evidentiary basis for working a view regarding the appellant’s level of concentration;
(f)    the Medical Assessor’s interview started at 11am and concluded at 12.40pm. That is a period of 1 hour and 40 minutes. Even if the worker was fatigued or developed a headache after the Medical Assessor examination (which is unknown), she was able to concentrate on the examination itself, which was intellectually demanding, and exceeding by more than three-fold the 30 minute upper limit contemplated by class 2. One could argue, with greater force (although the respondent does not propose to cross appeal and this is for comparison only) that class 2 was a generous approach;
(g)    the history given by the appellant was given low weight (which was within the Medical Assessor’s discretion) in relation to her complaint that she cannot focus, because that is not what was observed by the Medical Assessor himself. The Medical Assessor’s reasoning in that respect is clear and it is set out in the PIRS table attached to the MAC;
(h)    the comment by the appellant that the evidence simply does not support the conclusion that she is able to attend to any of the foregoing activities, all of the foregoing are plainly beyond her ability, is aspirational. It is not what the Medical Assessor found, and that is because the “foregoing activities” (the class three activities) being unavailable to the appellant for want of concentration, were excluded by reason of the Medical Assessor’s own clinical assessment;
(i)    the complaint by the appellant that the Medical Assessor has only had regard to a “single encounter” totally overlooks the legislative mandate, namely the “principles of assessment” in clause 1.6 of the SIRA Guidelines which include that “Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment…”. Whilst it is additionally necessary to have regard to the medial history (which the Medical Assessor did) it was ultimately required of the Medical Assessor to have regard to the presentation of the appellant that day – and she presented as being able to concentrate for much more than 30 minutes;
(j)    ground 2 – employability - it matters not that the Medical Assessor took a view against the preponderance of opinion. This is not correct in any event, as the only other medical practitioner to have assessed WPI was Dr Rastogi. A treating GP’s medical certificate and material of that nature is not a considered application of PIRS. Rather what one is left with is a difference of opinion between Dr Rastogi and the Medical Assessor or, in other words, cavilling;
(k)    the Medical Assessor did not ignore Dr Rastogi. Rather, in section 10 the MAC, the Medical Assessor set out at some length where there was a difference of opinion, or an agreement, as between the Medical Assessor and various other practitioners. Indeed, the Medical Assessor noted that, in certain areas, his conclusion was of a higher class assessment than Dr Rastogi. Clearly, the Medical Assessor has done exactly what he is supposed to do, namely independently assess each category in PIRS based on his own clinical judgment;
(l)    what is notable is that the conclusion that class 4 applies was based on an account given by the appellant that she believes she could work;
(m)     whilst the appellant nominated a pet shop as because suitable (because it involves working with animals more than humans) common sense suggests that a myriad of jobs involve primarily not working with people. The Medical Assessor legitimately look into account her ability to interact with him in the interview as being consistent with being able to do some work. It necessarily follows that if the appellant can have some successful interaction with the Medical Assessor, she can have some productive interaction with co-workers, albeit in the context that she is severely impaired in so doing (hence class 4 applying). In other words, the employability deficit is not ignored or under assessed, quite the opposite, it is “severe” in the Medical Assessor’s view, but not absolute. Therefore, class 5 does not apply, and
(n)    the Appeal Panel should find no ground is made out and confirm the MAC in dismissing the appeal.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment, but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The Appeal Panel reviewed the history recorded by the Medical Assessor, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.

Ground 1 – Concentration, Persistence and Pace

Concentration, persistence and pace

The appellant submits that the evidence supports an assessment of Class 3 for concentration, persistence and pace.
The examples under Table 11.5 for “concentration, persistence and pace” in the Guidelines 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.”
The Medical Assessor assessed the appellant as Class 2 for concentration, persistence and pace. In the PIRS Rating Form, the Medical Assessor wrote:
“Concentration, persistence and pace - Class 2.
Ms Pang said her concentration is poor. She said she does not do well at Bridge because she cannot focus. She denied watching movies. She said she does watch export (sic) on television. She noted problems with persistence and that she often leaves jobs unfinished. I noted no difficulties with concentration throughout the entire interview. She is mildly impaired”.
Under “Present symptoms” the Medical Assessor noted:
“Ms Pang said she is antisocial and does not want to see anyone anymore. Self-esteem remains low. She said she hates to use a computer and will avoid it at all cost. Sleep remains impaired. She said she feels miserable and terrible. She said in the past she was a successful and knowledgeable person and now she feels like rubbish. She is unable to trust anyone anymore. She feels angry and anxious. She questions herself and begins to cry and then she gets angry. She said there are intermittent thoughts about suicide but she does not feel she would act on them. She described being unable to sleep properly and said she gets 3 or 4 hours at most. She said her focus is impaired and she was unable to play bridge for years. She did see some Bridge friends last year and played at Pennant Hills. She said prior to that she was a grand master but now has trouble remembering the bidding. She said she has had a number of small car accidents causing multiple scratches to her vehicle because of impaired concentration. She said in the past she was the person who would solve problems but now she cannot do that. She said she is easily triggered, loses patience and becomes angry”.
Under “Findings on Physical Examination” the Medical Assessor wrote:
“Ms Pang is a 54-year-old right-hand-dominant woman whose appearance is younger than her stated age. She was located alone in a room in her apartment in Western Sydney. She was identified from her photograph on her NSW driver licence. She was interviewed using the Microsoft Teams application with a good internet connection. The interview commenced at 11 AM and concluded at PM 12:40 PM.
Ms Pang did not appear to be anxious or distressed although stated she had been anxious for 2 months prior to the interview. She also described anxiety arising from difficulty in forcing herself to use a computer for the interview. She responded to requests for information clearly but was reluctant to provide certain information and did so only after being reminded of information to the contrary in the documentation. There was no evidence of impaired concentration or memory throughout the interview.
Ms Pang was fully oriented in time, person and place and displayed no evidence of organic or psychotic psychopathology.”
When commenting on Dr Rastogi’s report dated 13 November 2024, the Medical Assessor noted that he agreed with her diagnosis but his assessment of WPI was significantly less in areas including concentration, persistence and pace and employability. The Medical Assessor commented on Dr Ng’s report dated 18 March 2020
In her supplementary statement dated 27 November 2024, the appellant stated that she had participated in tournaments as a bridge player since 2005, playing four to five times a week and would travel around Australia to play the annual bridge tournaments in every state. She described herself as “one of the best players to play Bridge” and staid that she had won various tournaments. She stated that since she stopped work for the respondent she had barely participated or played Bridge at all from 2019 to 2023. The appellant stated that starting this year some of her former Bridge partners prompted her to play again. She said that when she recently played, she won only a couple of times out of eight pairs instead of out of 30 pairs and this was a far cry to the level she used to be before her illness.
The appellant stated:
“27. In the limited times that I played, I struggle to sort out the difference between the cards suits due to my lack of concentration. I get confused between the suits
….
30. Even when I do play, my concentration is significantly diminished to the point where I am not the player that I once was.
31. Bridge was second nature to me and despite this, I struggle greatly to even play.
32. On or about 23 July 2024, I felt I only won due to my partner, Ms Judy Zhu being a very competent player and also due to luck. Previously and before my injury, I would have consistently good results. Now, if I were to win, it would be due to luck and having a good partner.
33. Judy and I only got selected on the honour role in 2024 because there are not many people participating. I did not make an application to get on this role. I did not care much about it...”
Dr Rastogi, in her report dated 13 November 2024, noted under “Current functioning/Daily functioning” that “concentration is limited, poor retention and feels stupid that unable to do simple tasks and gets agitated.” She noted that before the subject injury the appellant played bridge four times a week, managed her finances and enjoyed watching TV.
Dr Rastogi assessed Class 3 for concentration, persistence and pace providing the following reasons:
“Moderate impairment as unable to hold focus for more that 15 minutes and unable to do complex tasks, poor decision-making capacity, poor retention, and attention lapses.”
The appellant submits that there is no evidence of the appellant’s undertaking, or being able to undertake, a retraining course or a standard course, or evidence of the appellant’s focussing on intellectually demanding tasks for periods of up to 30 minutes (Class 2 descriptors). The appellant submits that the evidence simply does not support the conclusion that the appellant is able to attend to any of the foregoing activities given as examples in Class 3 and all of the foregoing are plainly beyond her ability.
The Appeal Panel notes that the Medical Assessor reported that there was no evidence of impaired concentration or memory in the assessment, which lasted about 100 minutes. The Appeal Panel infers from this report that the Medical Assessor was satisfied that the appellant was able to attend, persist, understand and comprehend and engage in the interview, with no observation of incapacity with the pace of the assessment, in such a manner to suggest a mild impairment in this scale. The Appeal Panel accept this report as clear evidence of the appellant’s ability to focus on the assessment which is an intellectually demanding task in a stressful context for more than 30 minutes. The Panel further noted the MA did not solely rely on the assessment on the day to rate her concentration, persistence and pace.
The Appeal Panel accepts that the Medical Assessor noted that the appellant described subjective problems such as poor concentration and not doing well at Bridge, or at least as well as her previous high performance, because for instance she reports trouble following the bidding. The Appeal Panel notes that the appellant said that she does not watch movies but does watch sport on television. She also reported problems with persistence and said that she often leaves jobs unfinished. However, this evidence is subjective and where there is objective evidence such as her statement concerning playing bridge and her ability to concentrate during the assessment, such evidence should be given appropriate weight. The Medical Assessor also commented on the appellant’s subjective self-report at times being inconsistent with the objective evidence
Garling J in Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633 (“Jenkins”) at [64] held that the examples given in the tables in the Guidelines were neither the sole, nor the minimum, basis for assessment of a person’s impairment as falling within a particular class. Rather, his Honour held, at [60]:
“Those examples attempt to explore the ways in which a psychiatric condition impacts upon the activities of daily living of an individual, and their capacity to function in the areas described.”
The Appeal Panel notes the appellant’s own statement that she can play bridge in a competitive environment and in 2024 reached a standard that had her placed on an honour role. Whilst the appellant stated that this success was solely due to her partner and good luck, the playing of Bridge, is, in our view, evidence of an ability to focus on intellectually demanding tasks for periods of up to and exceeding 30 minutes. Winning games in competitive bridge cannot be achieved with one partner unable to follow bidding or focus as she suggests. The fact that the appellant states that she now gets confused and no longer plays bridge at the same very high standard as she did before the subject injury, which the Appeal Panel accepts, is not evidence of incapacity. She is still actually able to play this complex game competitively and win, which requires focus and concentration for prolonged periods of time as when playing eight pairs.
The appellant submits that the Medical Assessor’s rating for concentration, persistence and pace is in conflict with the rating he made in respect of employability. The Appeal Panel rejects the submission that there is a conflict between the ratings made by the Medical Assessor in each scale because the Medical Assessor has to take into consideration different matters when making assessments of concentration, persistence and pace and of employability.
The appellant submits that the Medical Assessor did not provide reasons for why his opinion differed from that of Dr Rastogi. The Appeal Panel rejects that submission as the Medical Assessor referred to Dr Rastogi’s two reports dated 26 August 2020 and 13 November 2024. The Medical Assessor stated that he agreed with her opinion as to the diagnosis in both of her reports but his assessment of WPI was significantly less in the areas of social functioning, concentration, persistence and pace and employability and slightly higher in the area in the area of social and recreational activities.
The appellant submits that the Medical Assessor treated the appellant’s responses in the examination as overriding all of the evidence of the appellant’s deficits in daily functioning in the category of concentration, persistence and pace. The appellant argues that her answers to a series of questions posed by the Medical Assessor cannot be reasonably be considered to represent her capacity to independently maintain her concentration in attending to tasks and to independently maintain such concentration. The Appeal Panel rejects this submission noting that such an examination provides a good basis for assessment of concentration, persistence and pace in what is a complex, stressful and intellectually demanding situation, rather than an easy conversation suggested. The experienced medical members of the Appeal Panel note that many workers display overt deficits in this category in the assessment, find it intellectually demanding, and display difficulty persisting with the duration and pace of the assessment not one of which was recorded here. The Medical Assessor noted that the appellant was anxious at having to use a computer again but this did not lead to any objective impairment in this domain for over 90 minutes. The Appeal Panel noted that the appellant’s treating psychiatrist, Dr Yajuvendra Bisht, in a report dated 8 July 2025, noted that the appellant would have difficulty sustaining concentration for prolonged periods during some mental state examinations. The fact that the appellant is required to answer questions put to her in a structured fashion does not detract from an assessment of her functioning in this area. Further, cl 1.6a of the Guidelines provides that a key principle of permanent impairment assessment involves “clinical assessment of the claimant as they present on the day of assessment…”. Finally, the Medical Assessor took other evidence into account in making his assessment in this category.
The Appeal Panel finds no error in the rating of a mild impairment. The Medical Assessor is entitled to form his own clinical judgment on the day of assessment and having had due regard to the other medical opinions before him. The assessment of Class 2 is clearly in accordance with the criteria in the Guidelines. The Medical Assessor has assessed in accordance with the correct criteria, provided reasons for why he did so, including a number of inconsistencies between the appellant’s self-presentation and contemporaneous evidence. In particular, the Medical Assessor noted that the appellant had “insisted that her concentration was poor but this was not evident during the interview”.
The Appeal Panel rejects the submission that the Medical Assessor erroneously assessed the appellant as meeting the criteria for Class 2. This ground of appeal is not made out.

Employability

The appellant submits that the evidence supports an assessment of class 5 for employability.
The examples under Table 11.6 for “Employability” in the Guidelines are:
“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.
Class 5: Totally impaired: Cannot work at all”.
The Medical Assessor assessed the appellant as Class 4 for employability. In the PIRS Rating Form, the Medical Assessor wrote:
“Employability - Class 4.
Ms Pang said she would be unable to work with computers because she is phobic of them. She believes she could work in a pet shop because she is able to trust animals but not humans. She explained she enjoys taking her parents dog for a walk. Based on the level of her participation in the interview I believe she is capable of some minimal work. She is severely impaired”.
In her statement dated 21 February 2020, the appellant stated that she had not worked at all since 30 September 2019.
Dr Warick Blakemore, consultant psychiatrist, in a report dated 15 October 2024, expressed the view that the appellant appeared incapacitated still for all work as a result of her psychiatric condition.
Dr Rastogi, in her report dated 13 November 2024 noted:
“Your client has very limited future capacity to work and cannot work in preinjury role given the impairments associated with depression. She is unable to multitask, plan things and make decisions or handle stressful environments. Her ability to work
is significantly reduced and diminished and she is unlikely to work in part time capacity given deficits”.
Dr Rastogi assessed Class 5 for Adaption (Employability) providing the following reasons:
“Total impairment as unable to work in premorbid role or duties and pace is very erratic and reduced and unable to function cognitively.”
Dr Yajuvendra Bisht, treating psychiatrist, in a report dated 8 July 2025 noted that he had examined the appellant on 26 occasions between 3 February 2020 and 24 June 2024. Dr Bisht considered that the appellant did not have any capacity to work since the termination of her employment and her capacity was unlikely to improve in the future.
The last certificate of capacity dated 11 May 2021, from Dr Ben Dickson certified the appellant as having no current work capacity for any work.
The appellant submits that the Medical Assessor’s assessment in this scale is demonstrably erroneous and at odds with the preponderance of medical opinion, as provided by Dr Rastogi, Dr Bisht, Dr Lim, Dr Mo, Dr Calvache-Rubio and Dr Blakemore. Further, the appellant argues that the Medical Assessor did not acknowledge Dr Rastogi’s opinion or Dr Bisht’s opinion regarding the appellant’s lack of capacity for work.
In De Angelis v Solaris Paper Pty Ltd [2023] NSWPICMP 124, the Appeal Panel corrected PIRS ratings to reflect actual work capacity, emphasizing the importance of evidence-based assessments.
The Appeal Panel notes that Medical Assessor is not required to follow or agree with the “preponderance of medical opinion”. The role of the Medical Assessor is to utilise his clinical skill and judgement to form his own opinion in respect of the appellant’s work capacity. However, the Appeal Panel considers that the Medical Assessor did not provide adequate reasons for his difference in opinion concerning capacity to work, particularly, the opinion of the treating psychiatrist, Dr Bisht.
The Medical Assessor noted that the appellant said she believes she could work in a pet shop because she is able to trust animals but not humans. The Appeal Panel considers that the appellant’s views of what she thinks she may be able to do are not a proper basis for considering her having some minimal ability to work. Further, reliance by the Medical Assessor on the level of her participation in the interview does not provide any real basis for assessing her as able to work one or two days at a time.
The Appeal Panel accepts that the appellant has not worked at all since 30 September 2019. The Appeal Panel agrees that the fact the appellant enjoys taking her parents’ dog for a walk is not a satisfactory indicator of capacity to engage in employment.
In these circumstances, the Appeal Panel concludes that the Medical Assessor could not reliably assess the appellant as having capacity “to do a less demanding job for fewer than 20 hours a fortnight”.
The Appeal Panel is satisfied that the Medical Assessor erred in determining severe impairment (Class 4) under this category. This ground of appeal is made out.
The Appeal Panel considers that there is evidence to support an assessment of class 5 for employability. The appellant has not worked since 30 September 2019. She is unable to work with computers because she is “phobic of them”. She does not trust people and gest agitated and angry. The Appeal Panel assesses the appellant as Class 5 for employability.
The Appeal Panel assesses the appellant as class 5 for employability.
The Appeal Panel was satisfied that there was no demonstrable error in the MAC in relation to the rating of class 2 in the PIRS categories of concentration, persistence and pace.
Therefore, the Appeal Panel finds that the PIRS scales score 2 3 2 2 2 5, ascending order 2 2 2 2 3 5, median class 2, aggregate 16 so that the WPI = 9%. The Appeal Panel makes a deduction pursuant to s 323 of the 1998 Act of one tenth for the pre-existing condition, which results in a total of 8% WPI. This deduction was made by the MA and was not appealed.

For these reasons, the Appeal Panel has determined that the MAC issued on
7 February 2025 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W25675/24
Applicant:	Rosa Wing Shan Pang
Respondent:	IBM Australia Ltd

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

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Wayne Mason and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - whole person impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)
1.Psychiatric	30/06/2019	Ch 11	Ch 14	9	1/10	8%
Total % WPI (the Combined Table values of all sub-totals)					8%

[2025] NSWPICMP 394

4 June 2025